UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


REPORTS 


OF 


CASES 


ADJUDGED  IN 


THE    SUPREME    COURT 


OF 


PENNSYLVANIA. 


BY 


THOMAS  SERGEANT  &  WM.  RAWLE,  JUN. 


SECOND  EDITION,  REVISED  AND  CORRECTED. 


VOL.   IX. 


PHILADELPHIA: 

PUBLISHED  BY  THOMAS  DAVIS. 

No.  171  Market  Street, 

1845. 


45 

,Ai9 

1845 
v,9 


Entered  according  to  Act  of  Congress,  in  the  year  1845,  by 
THOMAS  DAVIS, 

In  the  Clerk's  Office  of  the  District  Court,  of  the  Eastern  District  of  Pennsylvania. 


JUDGES 


OF  THE 


SUPREME  COURT  OE  PENNSYLVANIA. 

WILLIAM  TILGHMAN,  Esq.  Chief  Justice. 

JOHN  B.  GIBSON,  Esq.         )  T    .. 

THOMAS  DUNCAN,  Esq.     i  Justlces- 


ATTORNEY   GENERAL. 

FREDERICK  SMITH,  Esq. 


TABLE  OP  CASES. 


A. 

Allen,  Andrews  v.  241 

Andrews  v.  Allen,  241 

Auwerter  v.  Mathiot,  397 

B. 

Bank    of   Montgomery    v. 

Walker,  229 
Bank    of    Pennsylvania  v. 

Latshaw,  .  9 
Barr,  Davis  v.  137 
Beates,  Slifer  v.  166 
Behncke  v.  King,  151 
Bell,  M'Causeland's  Admi- 
nistrators v.  388 
Black,  Smith  v.  142 
Bockius,  Ingrahara  v.  285 
Boisselet,  Fries  v.  128 
Brindle  v.  M'llvaine,  74 
Brobst,  Shaffer  v,  85 
Burd  v.  Ramsay,  109 


Cannon,  Gibbs  v.  199 

Carl  v.  The  Commonwealth ,     63 
Childerston  v.  Hammon,  68 

Clark,  treasurer,  Common- 
wealth v.  59 
Clemson,  Pusey  v.                  204 
Commonwealth  ex  relatione 
Patton  v.   County    Com- 


missioners, 


250 


ex   relatione 

Duffy  v.  Hanover  and 
Carlisle  Turnpike  Com- 
pany, 


Commonwealth    v.    Clark, 
treasurer, 

,  Carl  v. 

County 


59 
63 


commissioners, 


Commonwealth  ex  rela- 
tione Patton  v.  250 
Connelly,  Prather  v.  14 
Cooper  v.  Smith,  26 
Cozens  v.  Holinshead,  277 
Crotzer  v.  Russell, 


78,  81 


D. 


137 


Davis  v.  Barr, 

Dawes,  Fisher  Administra- 
tor of,  Thornton  v.  280 

Diehl,  King  v.  409 

Duffy,  Commonwealth  ex- 
relatione,  v.  Hanover  and 
Carlisle  Turnpike  Com- 
pany, 59 

E. 

Edme,  United  States  v.  147 

Emery  v.  Nelson,  12 

Evans  v.  Tatem,  252 


F. 

v.     Plummer's 


59 


Fetterman 

Administrators, 
Fisher,     Administrator 

Dawes,  Thurston  v. 
Flintham  v.  Forsythe, 

ii.  L'Amy, 

Friedly  v.  Scheetz, 
Fries  v.  Boisselet, 


of 


20 

288 
133 
133 

156 
128 


VI 


TABLE  OF  CASES. 


G. 

Germantown,  &c.  Turnpike 

Company  v.  Naglee,  227 

Gest,  case  of,  317 


Gibbs  v.  Cannon, 
Goldsboroudi,  Patlon  v. 


Guardians     of 
M'Cready  v. 


the     Poor, 


199 

47 

94 


H. 

Hambright,  Wheeler  v.  390 

Hamilton,  Wilson  v.  424 

Hammon,  Childerston  v.  68 

Hampton  v.  Speckenagle,       212 
Hanover  and  Carlisle  Turn- 
pike Company,  Common- 
wealth ex  relatione  Duf- 
fey  v.  59 

Harrison  v.  Wain,  318 

Harden,  Paul  v.  23 

Henderson  v.  Lewis,  379 

Hill,  Witherup  v.  H 

Hollinshead,  Peddle  v.  277 

,  Cozens  v.  277 

Hunt,  Share  v.  404 


Ingraham  v.  Boekius,  285 

Jourdan  v.  Jourdan,  269 

K. 

Keyzey's  Case,  71 

King,  Behncke  v.  151 

v.  Diehl,  409 

Kline  v.  Wood,  299 

Knox  v.  Rinehart,  45 

L. 

L'Amy  v.  Flinlham,  133 
Latshaw,  Bank  of  Pennsyl- 

Aania  v.  9 
Lehn  v.  Lehn,  57 
Lenox,  M'Call  v.  302 
Levy  v.  SprogePs  Execu- 
tors, 125 
Lewis,  Henderson  v.  ,'!79 

v.  Reeder,  193 

Lyle  v.  Richards,  323 


M. 

Mathiot,  Auwerter  v.  397 
M'Call  v.. Lenox,  302 
M'Causland's  Administra- 
tors v.  Bell,  388 
M'Clurg  v.  Whiting's  Bail,  24 
MTlvaine,  Brindle  v.  74 
Miller,  Matthew,  road  lead- 
ing from,  34 
Morris,  Scott  v.  123 

N. 
Naglee,    Germantown,    &c. 

Turnpike  Company  v.         227 
Neaves'  estate,  case  of,  186 

Nelson,  Emery  v.  12 

North  v.  Turner,  244 

P. 

Patterson  v.  Swan,  16 
Patton  v.  Goldsborough,  47 
Paul  v.  Harden,  23 
Peddle  v.  Hollinshead,  277 
Philadelphia  Insurance  Com- 
pany, Wells  v.  103 
Plu  miner's    Administrators, 

Fetterman  v.  20 

Prather  v.  Connelly,  14 

Pusey  v.  Clemson,"  204 

R. 

Ramsay,  Burd  v.  109 

Reeder,  Lewis  v.  193 

Richards,  Lyle  v.  323 

Rinehart,  Knox  v.  45 

Road  leading  from  Matthew 

Miller's, 
Robbarts  v.  Robbarts, 
Russel,  Crotzer  v. 


S. 
Scheetz,  Friedly  v. 
Schweigart,  Weidner  v. 
Scott  v.  Morris, 
Shaeffer's  estate  case  of, 

v.  Brobst, 

Share  v.  Hunt, 
Slifer  ik  Beates, 
Smith  v.  Black, 

,  Cooper  v. 

Sprogell's  Executors,Levyr.  125 


34 
191 

78,81 

156 
385 
123 
263 

85 
404 
166 
142 

26 


TABLE  OF  CASES. 


vu 


Speckenagle,  Hampton  v.  212 

Stoner,  Wilson  v.  38 

Stoever  v.  Stoever,  434 

Swan,  Patterson  v.  16 

T. 

Tatem,  Evans  v.  252 
Thomas  v.  Wright,  87 
Thompson,  Wain  v.  116 
Thurston  v.  Fisher  Admi- 
nistrator of  Dawes,  288 
Turner,  North  v.      .  244 


U. 


United  States  v.  Edme,  147 


W. 

Walker,   Bank  of  Montgo- 
mery v.  229 
Walker's  estate,  case  of,  223 
Wain  v.  Thompson,  115 

,  Harrison  v.  318 

WTells  v.  Philadelphia  Insu- 
rance Company,  103 
Weidner  v.  Schweigart,  385 
Wheeler  v.  Hambright,  390 
Whiting's  Bail,  M'Clurg  v.  24 
Wilson  v.  Stoner,  38 
Wilson  v.  Hamilton,  424 
Witherup  v.  Hill,  11 
Wood,  Kline  v.  294 
Wright  v.  Thomas,  87 


CASES 


IN  THE 


SUPREME  COURT  OF  PENNSYLVANIA. 

WESTERN  DISTRICT-SEPTEMBER  TERM,  1822. 


[Pittsburgh,  September  23,  1822.] 

The  Bank  of  Pennsylvania  against  LATSHAW. 

IN  ERROR. 

After  a.Ji.fa.  has  been  levied  upon  real  property,  which  has  been  condemned,  the 
plaintiff  cannot  abandon  these  proceedings  and  take  out  a  ca.  sa.  without  the 
leave  of  the  court. 

On  a  writ  of^error  to  Allegheny  county,  it  appeared  from  the 
record  that  the  plaintiff  below,  the  bank  of  Pennsylvania,  levied  a 
fieri  facias  on  the  real  property  of  the  defendant,  and  had  it  condemn- 
ed. A  venditioni  exponas  followed  in  due  course,  to  which  the 
sheriff  returned,  "  Proceedings  on  this  writ  abandoned  by  order  of 
the  plaintiff's  attorney."  On  the  same  day  a  ca.  sa.  was  issued, 
on  which  the  defendant  was  arrested.  To  obtain  his  discharge  he 
issued  a  habeas  corpus  returnable  before  Judge  Wilkins,  who, 
after  hearing  the  relator,  remanded  him  to  the  custody  of  the 
sheriff. 

To  reverse  this  execution,  was  the  object  of  the  present  writ  of 
error. 

D.  S.  Walker  and  Hopkins  for  the  plaintiff  in  error,  argued,  that 
a  fi.fa.  having  been  issued  and  in  part  executed,  no  ca.  sa.  could 
regularly  issue,  until  the  first  writ  was  finally  disposed  of.  1  Sell. 
Pr.  525.  Young  v.  Taylor,  2  Binn.  218.  In  MCollough  v. 
Guetncr,  1  Binn.  214.  it  was  decided,  that  when  an  inquest  re- 
turns that  the  rents  and  profits  will  pay  the  debt  in  seven  years,  the 
plaintiff  cannot,  without  the  leave  of  the  court,  abandon  his  first  fi. 
fa.  and  take  out  a  new  one.  The  levy  was  prima  facie  proof  at 
least,  that  the  defendant  had  property,  out  of  which  the  plaintiff's 
demand  might  be  satisfied,  and  it  is  only  in  the  absence  of  such 

vol.  ix.  B  „ 


10  SUPREME  COURT  [Pittsburgh^ 

(The  Bank  of  Pennsylvania  v.  Latshaw.) 

means  of  satisfaction,  that  the  law  permits  the  person  to  be  resorted 
to.  It  was  not  the  province  of  the  plaintiffs  to  decide  that  the  pro- 
perty was  so  incumbered,  as  ultimately  to  make  it  no  satisfaction. 
If  such  was  their  opinion,  an  application  to  the  court  to  set  aside 
the  levy,  would  have  enabled  them  to  ascertain  the  fact,  and  if  it 
had  been  made  to  appear  so  to  the  court,  relief  could  have  been 
given. 

Biddk,  for  the  defendant  in  error,  contended,  that  on  general 
principles,  a  plaintiff  may  abandon  one  execution  and  take  out  an- 
other. When  z.fi.  fa.  has  been  executed  in  part,  it  is  only  necessary 
that  it  should  be  returned,  to  authorize. a  second  execution.  1  Sell 
Pr.  535.  The  case  of  Ml  Collough  v.  Guetner,  in  which  the  effect  of 
permitting  the  plaintiff  to  abandon  the  proceedings  on  his  first  exe- 
cution, and  take  out  a  new  one,  would  have  been  to  deprive  the 
defendant  of  the  benefit  of  the  inquisition  by  which  he  was  entitled 
to  preserve  his  -land,  is  not  at  all  analogous  to  the  present  case,  in 
which  the  land  was  condemned.  If  the  property  (as  was  actually 
the  case  here,)  be  so  covered  with  older  judgments,  as  to  make  the 
levy  wholly  unavailable,  arc  the  plaintiff's  hands  to  be  tied,  until  its 
insufficiency  be  proved  by  a  sale,  or  the  court  be  called  upon  to  in- 
terfere ?  The  result  of  such  delay  would  in  many  cases  be  the  loss 
of  the  debt.  And  who  is  to  judge  whether  the  property  affords  a 
sufficient  tor  any  security  for  the  debt  ?  Not  this  court  surely,  be- 
cause they  have  not  before  them  the  facts  necessary'  to  such  an  in- 
quiry. If  the  plaintiffs  themselves  be  not  competent  alone  to  decide, 
they  have  the  sanction  of  the  opinion  of  the  president  of  the  Court 
of  Common  Pleas,  who  on  a  review  of  the  facts,  remanded  the  de- 
fendant to  the  custody  of  the  sheriff'. 

Gibson,  J.  delivered  the  opinion  of  the  court. 

I  think  it  clear  the  defendant  could  not  abandon  the  levy  while 
it  remained  in  force.  In  delivering  the  opinion  of  the  court,  in  Young 
v.  Taylor,  (2  Binn,  218.)  it  was  thought  by  Mr.  Justice  Yeates  to 
be  highly  questionable,  whether  a  plaintiff,  after  the  defendant  had 
been  arrested,  and  discharged  on  giving  security  to  apply  for  the 
benefit  of  the  insolvent  fcVvfcs,  could  withdraw  his  ca.  sa.  and  issue 
zfi.fa.  without  the  leave  of  the  court.  The  doubt,  I  presume, 
arose  from  considering  the  arrest  as  satisfaction  till  the  defendant 
should  be  finally  discharged  ;  and  if  it  were,  the  assent  of  the  court 
would  perhaps  not  be  a  sufficient  sanction  for  the  issuing  of  a  new 
writ.  But  in  the  case  before  us,  such  assent  is  of  essential  import- 
ance. The  act  of  the  13th  of  April,  1807,  declares  that  no  ca.  sa. 
shall  be  issued  where  the  defendant  shall  have  real  or  personal  pro- 
perty to  salisfy  the  debt.  Now  the  return  of  a  levy  becomes  mat- 
ter of  record  which  nothing  but  the  judgment  of  the  court  can 
discharge.  The  plaintiff,  at  the  risk  of  being  answerable  for  a 
trespass,  in  case  the  defendant  should  be  found  to  have  had  proper- 
ty, might  have  arrested  him  in  the  first  instance ;  but  where,  from 


Sept.  1822.]  OF  PENNSYLVANIA.  11 

(The  Bank  of  Pennsylvania  v.  Latshaw.) 

his  own  showing,  there  is  at  least  prima  facie  evidence  of  the 
existence  of  property,  it  would  be  an  abuse  of  the  process  of  the 
court  to  permit  him  to  abandon  it,  and  resort  to  the  person.  It  is 
unnecessary  to  determine  whether  a  levy,  while  it  is  undisposed  of 
by  any  further  proceeding  or  order  of  the  court,  is  to  be  considered 
as  a  discharge  of  the  debt :  while  it  remains  in  force,  as  it  must 
necessarily  be,  till  it  is  set  aside,  a  ca.  sa.  must  appear,  on  the 
very  face  of  the  proceedings,  to  be  irregular  on  other  grounds ;  for 
while  the  defendant  is  ostensibly  able  to  make  satisfaction  by  his 
property,  it  is  the  business  of  the  court  to  see  that  he  be  not  called 
on  to  make  satisfaction  by  his  person.  The  better  course  here  would 
have  been  to  call  on  the  defendant  to  show  cause  why  the  levy 
should  not  be  set  aside  ;  and  if,  by  reason  of  prior  liens,  it  had  been 
found  altogether  worthless  as  a  means  of  satisfaction,  the  rule  would 
have  been  made  absolute :  after  which  the  ca.  sa.  would  have  been 
perfectly  regular. 

Judgment  affirmed  and  execution  reversed. 


{Pittsburgh,  Sept.  24,  1822.] 
WITHERUP  against  HILL. 

IN  ERROR. 

In  support  of  an  action  for  money  had  and  received,  a  receipt  signed  by  the  defendant 

for  goods  deposited  in  his  store  by  the  plaintiff,  is  evidence. 
If  there  be  any  thing  in  the  plaintiff's  case  which  entitles  him  to  an  exemption  from  the 

operation  of  the  act  of  limitations,  he  ought,  when  the  act  is  pleaded,  to  set  it  forth 

in  his  replication.     If  he  omit  to  do  so,  and  join  issue  on  the  plea,  it  is  incumbent  on 

him  to  prove  an  assumption  within  six  years. 

The  defendant  in  error  brought  an  action  in  the  Court  of  Common 
Pleas  of  Venango  county,  against  the  plaintiff  in  error,  in  which  he 
declared  for  money  had  and  received,  &c.  The  defendant  pleaded 
non  assumpsit  and  payment,  and  non  assumpsit  infra  sex  annos  ;  to 
which  the  plaintiff  replied  that  he  did  assume  within  six  years; 
whereupon  issue  was  joined. 

The  plaintiff  offered  in  evidence  on  the  trial  two  receipts  signed 
by  the  defendant,  for  certain  goods  deposited  by  the  plaintiff  in  the 
defendant's  store,  one  dated  June  12,  1806,  the  other  July  7th, 
1$06."  The  defendant  objected  that  the  receipts  were  inadmissi- 
ble under  the  pleas  put  in:  The  plaintiff  answered,  that  this  being 
a  case  of  trust,  the  act  of  limitations  did  not  apply  ;  to*  which  it  was 
replied  that  the  action  ought  then  to  have  been  against  the  defen- 
dant as  bailiff,  factor,  agent  or  receiver,  or  in  account  render. 

The  court  overruled  the  objection,  admitted  the  evidence,  and 
afterwards  charged  the  jury,  that  from  the  nature  of  the  plaintiff's 
demand,  the  act  of  limitations,  was  no  bar  to  his  recovery.  The 
counsel  for  the  defendant  excepted  to  the  opinion  of  the  court,  both 
on  the  question  of  evidence  and  in  their  charge  to  the  jury. 


12  SUPREME  COURT  [Pittsburgh, 

(Withcrup  v.  Hill.)  i 

Selden  and  Farrelly,  for  the  plaintiff  in  error. 

Forivard,  contra. 

Per  Curiam.     This   was  an  action  for  money  had  and  received, 
&c.  pleas,  non  assumpsit,  payment,  and  statute  of  limitations,  and  is- 
sues.    The  plaintiff  offered  in  evidence  two  receipts  signed  by  the 
defendant  for  goods  deposited  in  his  store  by  the  plaintiff.     This 
evidence  was  objected  to   by  the  defendant,  but  admitted  by   the 
court.     It  is  our  opinion  that  the  evidence  was  properly  admitted. 
It  was   the  first  link  in  the  plaintiff's  chain  of  evidence;   having 
proved  the  deposit  of  the  goods,  he  might  have  gone  on  to  prove 
that  they  had  been  sold  by  the  defendant,  and  the  money  received 
by  him,  which  would  have  been  directly  in  support  of  the   action. 
But  there  was  another  exception  to  the  charge  of  the  court.     The 
defendant  prayed  the  court  to  instruct  the  jury,  that  if  they  should 
find,  that  the  defendant  did  not  make  an  assumption  within  six  years 
before  the  bringing  of  the  suit,  their  verdict  ought  to  be  for  the  de- 
fendant, on   the   issue  of  the  statute  of  limitations,   but  the  court 
charged,  "that  from  the  nature  of  the  plaintiff' 's  demand,  the  statute 
of  limitations  ivas  not  a  bar."     In  this,  we  are  of  opinion,   there 
was  error.     The  plaintiff's  demand,  was  for  money  received  by  the 
defendant  for  his  use,  and  in  his  replication  to  the  plea  of  the  statute 
of  limitations,  he  affirmed  that  the  defendant  assumed  within  six 
years.     The  burden  of  proof  was  therefore  on  him.     If  there  had 
been  any  thing  particular  in  his  case,  which  would  have  exempted 
it  from  the  statute  of  limitations,  the   plaintiff  ought  to  have  set  it 
forth  in  his  replication,  and  not  have  replied  that  the  defendant  did 
assume  within  six  years.     On  the  issue  joined,  it  was  incumbent  on 
the  plaintiff  to  prove  an  assumption  within  six  years,  and  failing  in 
that,  the  verdict  ought  to  have  been  against  him.     The  judgment  is 
to  be  reversed,  and  a  venire  de  novo  awarded. 

Judgment  reversed  and  a  venire  fascias  de  novo  awarded. 


[Pittsburgh,  Sept.  27, 1822.] 

EMERY  against  NELSON. 

IN  ERROR. 

When  a  justice  of  tlic  peace  has  jurisdiction  of  a  case,  his  judgment,  though  erroneous, 
is  binding  on  the  parties  until  reversed  on  a  certiorari  or  appeal. 

Tins  was  an  action  of  trover  for  a  heifer,  brought  before  a  jus- 
tice of  the  peace,  by  William  JVelson,  the  defendant  in  error, 
against  John  Emery,  the  plaintiff  in  error.  The  magistrate  gave 
judgment  in  favour  of  the  plaintiff,  for  8  dollars,  and  the  defendant 
appealed  to  the  Court  of  Common  Pleas  of  Mercer  county.  An  ac- 
tion of  trover  had  been  previously  brought  by  Emery  against  Nel- 
son, for  the  same  heifer,  which  was  submitted  to  referees,  who  re- 


Sept.  1822.]  OF  PENNSYLVANIA.  13 

(Emery  v.  Nelson.) 

ported  the  sum  of  4  dollars  in  favour  of  the  plaintiff,  for  which  the 
magistrate  before  whom  the  suit  was  brought,  entered  judgment. 

In  order. to  prove  property  in  the  heifer  at  the  commencement  of 
the  present  suit,  the  plaintiff  produced,  on  the  trial  in  the  common 
pleas,  the  record  of  the  trial  and  judgment  in  the  case  of  Emery  v. 
Nelson,  which  he  contended  was  conclusive  as  to  the  right  of  pro- 
perty. The  defendant  contended,  that  the  value  of  the  property  in 
controversy  being  less  than  10  dollars,  the  award  and  judgment  were 
irregular  and  void,  and  must  be  treated  as  nullities.    - 

The  court  was  of  opinion,  that  although  the  judgment  was  not 
perfectly  regular,  yet  as  the  justice  had  jurisdiction  of  the  cause  of 
action,  and  the  defendant  had  acquiesced  in  it,  by  omitting  to  re- 
move it  by  certiorari  within  a  proper  time,  it  must  be  considered 
a  valid  judgment  against  the  defendant.  An  exception  was  taken 
by  the  defendant  to  this  opinion,  and  the  verdict  being  for  the 
plaintiff,  the  cause  was  removed  to  this  court  by  writ  of  error. 

Forward,  for  the  plaintiff  in  error.  No  consent  can  give  a 
justice  of  the  peace  power  to  enter  a  judgment  upon  an  award  of 
referees,  if  he  be  not  authorized  to  do  so  by  act  of  assembly. 
And  there  is  not  only  no  act  which  authorizes  a  reference  in 
a  case  like  this,  but  it  is  in  terms  excluded  by  the  second  section  of 
the  act  of  22nd  March,  1814.,  Purd.  Dig.  363.  This  section  per- 
mits a  reference  only  when  the  demand  in  controversy  exceeds  ten 
dollars. 

Farrelly  and  Bankes,  contra. 

A  justice  of  the  peace  having  jurisdiction  in  cases  of  trover, 
where  the  property  in  dispute  does  not  exceed  100  dollars,  the  ob- 
jection here  is  not  to  the  jurisdiction,  but  to  the  mode  of  trial.  The 
parties  were  entitled  to  try  their  cause  in  any  manner  they  pleased, 
and  they  chose  a  reference,  which  independently  of  the  act  of  as- 
sembly, would  have  been  good  at  common  law.  If  parties  appear  be- 
fore the  justice,  and  try  the  cause  before  the  return  day  of  the  sum- 
mons, they  are  bound  by  his  judgment,  Buckmyer  v.  Dubs',  5  Binn. 
32  ;  and  why  should  they  not  be  bound  by  this  judgment  on  an 
award  of  referees  made  by  consent  ?  There  is  no  difference  in  prin- 
ciple. But  if  the  judgment  was  erroneous,  it  was  binding  upon  the 
parties  until  reversed  by  certiorari,  or  on  appeal.  Zeigler  v. 
Zeigler,  2  Serg.  Sf  Rawle,  286.  Lewis  v.  Smith,  2  Serg.  &>' 
Rawle,  156,  162.  The  omission  to  adopt  the  remedy  given  by  law 
amounted  to  a  release  of  errors. 

Per  Curiam.  William  Nelson,  the  plaintiff  below,  brought 
this  action  of  trover,  for  a  heifer  which  had  been  the  subject  of  an- 
other action  of  trover,  brought  by  the  present  defendant  against 
him  before  a  justice  of  the  peace,  in  which  there  was  a  recovery 
against  him  for  four  dollars,  the  value  of  the  heifer.  If  that  was  a 
valid  judgment,  the  property  was  transferred  to  the  present  plaintiff', 
and  whether  it  was  valid  was  the  question  on  the  trial  in  the  court 
below.  It  was  objected,  that  the  judgment  was  invalid,  because 
the  justice  gave  judgment  in  an  action  of  trover,  where  the  pro- 


14  SUPREME  COURT  [Pittsburgh, 

(Emery  v.  Nelson.) 

property  in  dispute  was  of  less  value  than  10  dollars,  on  the  award 
of  certain  persons  to  whom  the  suit  was  referred  by  consent 
of  the  parties.  The  counsel  for  the  defendant  contends  that 
the  act  of  22d  March,  1814,  gives  no  power  in  such  case,  to 
enter  a  judgment  on  the  report  of  referees.  We  give  no  opinion  on 
the  regularity  of  the  judgment,  but  inasmuch  as  the  justice  had  ju- 
risdiction of  the  case,  we  are  of  opinion  that  the  judgment  was  not 
void.  It  might  have  been  appealed  from  and  removed  by  certio- 
rari to  the  Court  of  Common  Pleas.  But  being  acquiesced  in,  by 
both  parties,  it  is  between  those  parties  a  valid  judgment.  That 
being  the  case,  the  property  of  the  heifer  was  transferred  to  the  pre- 
sent plaintiff,  who  having  proved  a  demand  and  refusal,  was  enti- 
tled to  a  verdict.  We  are  of  opinion,  therefore,  that  the  judgment 
should  be  affirmed. 


[Pittsburgh,  Sept.  27,  1822.] 

PRATIIER   against   CONNELLY. 

IN  ERROR. 

The  limitation  of  six  months  as  to  suits  against  justices  of  the  peace,  contained  in 
the  7th  section  of  the  act  of  2lst  March,T772,  may  be  taken  advantage  of  by  the 
justice,  though  not  specially  pleaded.  ~ 

But  in  a  suit  against  a  justice,  for  not  certifying  a  recognizance,  entered  into  by 
the  plaintiff,  in  consequence  of  which  the  plaintiff's  appeal  from  the  judgment 
of  such  justice  was  dismissed,  evidence  is  admissible  that  the  plaintiff  tendered 
bail  to  the  justice,  more  than  six  months  before  the  suit  against  the  justice,  be- 
cause, though  this  was  before  the  six  months,  the  neglect  to  certify  the  recogni- 
zance may  have  been  within  that  period. 

Writ  of  error  to  Venango  county. 

The  defendant  in  error,  Isaac  Connelly,  Esquire,  who  was  also 
defendant  below,  was  a  justice  of  the  peace,  before  whom  the  plain- 
tiff in  error,  Prather,  had  been  sued  by  a  certain  William  Kin- 
near.  The  judgment  of  the  magistrate  being  against  P rather,  he 
appealed  to  the  Court  of  Common  Pleas,  who  quashed  the  appeal, 
because  the  recognizance  of  bail  was  not  certified  with  the  tran- 
script of  the  justices'  docket.  The  present  suit  was  brought  against 
the  justice  for  neglecting  to  certify  the  recognizance  of  bail.  The 
plaintiff  on  the  trial,  offered  a  witness  to  prove,  that  on  the  10th  or 
12th  July,  1818,  he  tendered  to  the  justice  good  and  sufficient  bail. 
The  defendant  objected  to  the  evidence,  because  more  than  six 
months  had  elapsed  between  the  time  of  offering  the  bail,  and  the 
commencement  of  this  action.  (See  act  21st  March,  1772,  Purd. 
Dig.  352.)  The  court  sustained  the  objection,  and  the  plaintiffs' 
counsel  excepted  to  their  opinion. 

Selden  and  Farrelly  for  the  plaintiff  in  error. 

Forward,  contra. 

The  opinion  of  the  court  was  delivered  by 


Sept.  1822.]      •         OF  PENNSYLVANIA.  15 

(Prather  v.  Connelly.) 

Gibson  J.  The  plaintiff  sued  the  defendant  who  was  a  justice  of 
the  peace,  and  had  rendered  a  judgment  against  him  from  which 
the  plaintiff  had  appealed,  for  not  certifying  the  recognizance  ~of 
bail  along  with  the  transcript ;  for  want  of  which  the  appeal  was 
quashed.  At  the  trial,  the  plaintiff  offered  to  prove,  that  on  the 
10th  or  12th  of  July,  1818,  (a  period  considerably  more  than  six 
months  preceding  the  commencement  of  the  suit,)  he  had  tendered 
sufficient  bail ;  and  the  evidence  thus  offered,  being  objected  to,  was 
overruled.  It  is  argued  by  the  plaintiff  in  error,  that  the  act  limiting 
the  time  for  bringing  actions  against  justices,  should,  as  it  was  not 
pleaded,  have  been  laid  out  of  the  case.  I  can  see  no  reason  for  that. 
The  policy  of  requiring  a  statute  of  limitation  to  be  plead  in  any 
case,  is  extremely  questionable.  There  are,  however,  many  cases 
where  pleading  is  required  by  a  long  train  of  decisions,  and  these  it 
would  now  be  improper  to  disturb  ;  but  where  the  statute  is  bene- 
ficial, and  there  is  no  positive  authority  in  the  way,  we  should  not 
be  justifiable  in  interposing  the  slightest  obstacle  between  the  party 
and  the  enjoyment  of  the  relief  intended  to  be  secured  to  him.  Jus- 
tices of  the  peace  are  bound  to  act,  and  at  their  peril:  consequently 
from  the  infinite  variety,  and  the  minute  nature  of  the  business, 
which  falls  to  the  share  of  their  jurisdiction,  they  are  continually 
and  even  with  the  best  intentions,  in  imminent  danger  of  going 
wrong.  The  legislature  has  thought  them,  and  justly  I  presume, 
fair  objects  of  protection,  and  the  laws  made  for  that  purpose,  have 
always  been  beneficially  construed.  It  would  seem  the  correspon- 
dent statute  of  Geo.  2.  which  is  the  counterpart  of  our  act,  is  con- 
stantly given  in  evidence  on  the  general  issue.  (2.  Phillips  Ev. 
245.)  But  still  I  am  of  opinion  the  evidence  should  not  have  been 
rejected.  The  injury  complained  of  was  the  neglect  to  certify  the 
recognizance  of  bail,  by  which  the  right  of  appeal  was  frustrated  ; 
and  this  may  have  happened  immediately  before  the  entry  of  the 
appeal  with  the  prothonotary,  and  a  considerable  time  after  it  was 
taken  before  the  magistrate.  The  evidence  rejected  was  that  suffi- 
cient bail  had  been  tendered  ;  which  was  merely  the  ground  work  of 
the  case  and  introduetory  of  the  evidence  of  the  gravamen,  the  ne- 
glect to  certify  the  recognizance  ;  and  that,  from  all  that  appears, 
may  have  been  within  the  six  months.  The  court  could  not  say 
how  far  the  plaintiff  might  have  gone  in  making  out  his  case,  had 
he  been  suffered  to  proceed.  Sometimes  a  plaintiff  discloses  all  his 
evidence  at  once ;  and  I  will  not  say  there  may  not  be  cases  where 
the  whole  evidence,  taking  it  all  to  be  true,  shall  be  so  palpably  de- 
ficient in  making  out  a  case  on  which  the  plaintiff  might  recover,  as 
to  justify  the  court  in  rejecting  it  on  the  ground  of  irrelevancy. 
Where,  however,  there  is  the  slightest  doubt,  it  is  clear  the  evidence 
should  go  to  the  jury  with  the  direction  of  the  court  as  to  its  legal 
effect:  much  more  so  where  the  court  in  rejecting  the  evidence  as- 
sume the  existence  of  any  collateral  fact.  In  such  case  the  considera- 
tion of  the  fact  is  withdrawn  from  the  jury,  which  is  enrol*. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


16  SUPREME  COURT  [Pittsburgh, 

[Pittsburgh,  Sept.  27,  1822.] 
PATTERSON  against  SWAN  and  another. 

IN  ERROR. 

Where  a  defendant  entered  bail  to  entitle  himself  to  a  stay  of  execution  under  the 
provisions  of  the  act  of  21st  March,  1806,  and  the  plaintiff,  after  the  expiration 
of  the  cesset,  issued  a,  fieri  facias  and  levied  on  the  defendant's  real  estate,  and  on 
the  return  of  the  writ  issued  a  scire  facias  against  the  bail  upon  his  recognizance, 
it  was  held,  that  the  plaintiff  was  not  bound  to  make  his  election  between  the  de- 
fendant in  the  original  action,  and  the  bail,  but  might  pursue  his  remedies  against 
both  or  cither,  though  he  could  receive  but  one  satisfaction. 

The  doctrine  of  election  holds  only  where  the  remedies  are  inconsistent  with  each 
other,  not  where  they  are  concurrent. 

Where  a  number  are  concurrently  liable,  they  all  remain  so  until  satisfaction  actu- 
ually  received  from  some  of  them. 

Tins  was  a  writ  of  error  to  the  Common  Pleas  of  Allegheny 
county. 

M.  M.  and  /.  Swan,  the  defendants  in  error,  and  Christian  Lat- 
shaio  and  Richard  T.  Leech,  trading  under  the  firm  of  Latshaw  Sf 
Leech,  by  agreement  in  writing,  filed  on  the  27th  March,  18.20, 
entered  an  amicable  action  in  the  Common  Pleas  of  Allegheny  county, 
as  of  January  term,  1820,  in  which  M.  M.  §  I.  Swan  were  plaintiffs, 
and  Latshaw  fy  Leech  defendants.  The  same  agreement  contained 
a  confession  of  judgment  by  Latshaw  8f  Leech  in  favour  of  M.  M.  8f 
I.  Sioan,  for  the  sum  of  802  dollars  and  81  cents,  with  interest 
from  the  24th  day  of  April,  1820.  On  the  29th  of  April,  1820, 
Robert  Patterson,  the  plaintiff  in  error,  entered  into  a  recognizance, 
written  immediately  under  the  docket  entry  of  the  amicable  action 
and  judgment  referred  to,  in  the  following  words  ;  "  Robert  Patter- 
son, of  Pittsburgh,  bound  in  the  sum  of  $1,500,  sub  cond.  for  the 
final  payment  of  the  debt,  interest,  and  costs,  in  this  suit,  in  order 
to  entitle  the  defendants  to  a  stay  of  execution  as  freeholders, 
acknowledged  coram 

E.  PENTLAND,  Proth'y." 

A.  fieri  facias  was  issued  to  April  term,  1821,  a  levy  made  on  cer- 
tain real  estate  belonging  to  Christian  Latshaw,  an  inquisition  held, 
and  an  appraisement  of  the  same. 

On  the  2d  of  July,  1821,  M.M.  8f  I.  Swan  issued  a  scire  facias 
to  August  term,  1821,  against  Robert  Patterson.  The  praecipe  for 
the  sci.fr.  was  in  the  following  words  : 

"  M.  M.  $  I.  Swan,    }  Issue  sci.fi.  on  recognizance  of  special 
v.  >       bail  in  No.  400,  January  term,  1820. 

Robert  Patterson.       )  R.  BIDDLE,  PUff's.  AWy. 

2d  July,  1821." 

The  scire  facias  issued  by  the  prothonotary  in  obedience  to  this 
praecipe,  was  in  the  following  words  : 


Sept.  1822.]  OF  PENNSYLVANIA.  17 

(Patterson  v.  Swan  and  another.) 

"  Allegheny  County,  ss. 

.^w — »  The  Commonwealth  of  Pennsylvania  to  the  Sheriff 
[  seal.  |  of  the  county  of  Allegheny,  greeting :  Whereas  M.  M. 
•■ — -^^  fy  I.  Swan,  lately  in  our  court  of  Common  Pleas,  be- 
fore our  judges  at  Pittsburgh,  that  is  to  say,  on  the  27th  clay  of 
March,  in  the  year  of  our  Lord,  1820,  by  the  judgment  of  the  said 
court,  recovered  against  Latshaw  and  Leech,  the  sum  of  802  dollars 
and  81  cents,  lawful  money  of  the  United  States,  for  their  damages 
which  they  sustained  in  a  certain  plea  of  trespass  on  the  case,  &c,  as 

also  the  sum  of dollars  and cents,  for  their  costs  and  charges 

by  them  about  this  in  that  behalf  expended,  whereof  the  said  Latshaw 
fy  Leech  are  duly  convict  as  appears  to  us  of  record  :  And  although 
judgment  inform  aforesaid  be  given,  execution  thereof  yet  remains 
to  be  made.  And  whereas  Robert  Patterson  lately,  that  is  to  say,  on 
the  29th  day  of  April,  in  the  year  of  our  Lord,  1820,  in  his  own  pro- 
per person  came  into  our  said  Court  of  Common  Pleas,  before  our 
said  judges  at  Pittsburgh,  and  became  pledge  and  security  for  the 
said  Latshaw  and  Leech,  in  the  sum  of  1500  dollars,  lawful  money  of 
the  United  States  as  aforesaid,  in  that  behalf  should  be  made  and 
levied  of  the  goods  and  chattels,  lands  and  tenements,  of  him  the 
said  Robert  Patterson,  to  the  use  of  the  said  M.  M.  and  I.  Swan, 
unless  the  said  Latshaw  and  Leech  should  pay  and  discharge  the 
same.  Nevertheless  the  said  Latshaw  and  Leech,  the  debt,  damages, 
costs  and  charges  aforesaid,  to  the  said  M.  M.  and  J.  Swan,  have 
not  yet  paid,  as  by  the  said  M.  M.  and  J.  Swan,  we  are  in  our 
said  court  informed :  Whereupon  the  said  M.  M.  and  I.  Swan  have 
besought  us  that  we  would  grant  unto  them  a  proper  remedy  in  this 
behalf,  and  we  being  willing  that  right  and  justice  should  be  done 
herein,  do  command  you,  that  by  good  and  lawful  men  of  your 
bailiwick,  you  make  known  to  the  said  Robert  Patterson,  that  he 
be  and  appear  before  our  said  judges  at  Pittsburgh,  at  our  County 
Court  of  Common  Pleas,  there  to  be  held  for  the  county  aforesaid, 
the  first  Monday  of  August  next,  there  to  show,  if  any  thing  he 
hath,  or  can  say,  why  the  said  M.  M.  and  J.  Swan  ought  not  to 
have  his  execution  against  him  the  said  Robert  Patterson,  for  his 
debt,  damages,  interest,  costs,  and  charges,  as  aforesaid,  accord- 
ing to  the  force,  form,  and  effect  of  the  recognizance  aforesaid, 
if  to  him  it  shall  seem  expedient,  and  further  to  do  and  receive 
whatsoever  our  said  court  shall  then  and  there  of  and  concerning 
them  in  this  behalf  consider:  And  have  you  then  and  there  the 
names  of  those  by  whom  you  shall  so  make  known  to  him,  and 
this  writ. 

Witness  the  honourable  William  Wilkins,  Esquire,  president  of 
our  said  court  at  Pittsburgh,  this  fifth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twenty-one. 

(Attest.)  JAMES  R. 'BUTLER,  Proth'y. 

On  the  28th  August,  1821,  the  attorney  of  M.  M.  and  7.  Swan, 
entered  a  rule  of  reference,  which  was  served  on  Patterson'9 s  attor* 

VOL.  ix.  C 


IS  SUPREME  COURT  [Pittsburgh, 

(Patterson  v.  Swan  and  another.) 

ney,  and  on  the  15th  of  September  following,  the  time  stated  in  the 
rule,  the  plaintiffs'  attorney  appeared  at  the  prothonotary's  office, 
and  the  defendant  not  appearing,  arbitrators  were  appointed,  who 
on  the  6th  of  October,  1821,  made  the  following  award  : — "  6th  Oc- 
tober, 1821.  Arbitrators  met  and  plaintiffs'  attorney  appeared. 
Defendant  did  not  appear.  After  hearing  the  evidence,  we  find  for 
the  plaintiffs,  872  dollars  and  65  cents,  and  direct  that  defendant 
pay  the  costs  of  this  suit,  and  of  those  accrued  in  No.  400,  of  Jan- 
vary  Term,  1820,  (M.  M.  8f  I.  Swan  v.  Latshaw  §'  Leech.)  The 
arbitrators  were  duly  sworn. 

ALEXANDER  JOHNSON.     Seal. 
(Signed)  NEVILL  B.  CRAIG.     Seal. 

THOMAS  ENOCH.     Seal." 

The  attorney  of  M.  M.  fy  I.  Sioan  had  previous  to  entering  a  rule 
of  reference,  fded  the  following  statement. 

"  M.  M.  fy  I.  Swan,  *)      No.  173,  August  Term,  1821. 

v.  >      Sci.  fa.   sur.   recognizance  of  bail,  for 

Robert  Patterson.        )  final  payment  of  money  in  No.  400,  Janu- 
ary, 1820. 

The  plaintiff,  by  Richard  Riddle,  his  attorney,  states  his  cause  of 
action  as  follows,  viz  :  That  the  defendant  on  the  29th  day  of  April, 
1820,  became  bound  in  a  certain  recognizance  in  the  sum  of  1500 
dollars,  before  the  Court  of  Common  Pleas  of  Allegheny  county, 
conditioned  for  the  final  payment  of  a  certain  judgment  obtained  by 
the  aforesaid  plaintiff  against  Christian  Latshaw  and  Richard  T. 
Leech,  trading  under  the  firm  of  Latshaw  Sf  Leech,  being  No.  400, 
of  January  term,  1820,  for  the  sum  of  802  dollars  and  81  cents 
debt,  interest  from  24th  April,  1820,  and  costs  of  suit,  in  order  to 
obtain  for  the  said  iAitshaw  Sf  Leech,  the  stay  of  execution  allowed 
to  freeholders  according  to  law,  as  by  the  said  recognizance  in  the 
said  court  remaining  fully  appears ;  that  the  said  stay  of  execution 
is  fully  ended,  and  the  amount  of  the  said  judgment,  interest,  and 
costs  is  yet  unpaid ;  whereby  an  action  hath  accrued  to  the  said 
plain! iff,  to  demand  and  have  of  and  from  the  said  Robert,  the  sum 
of  fifteen  hundred  dollars.  Yet  the  said  Robert,  although  often  re- 
quested hath  not  paid  the  same  money,  the  debt,  interest,  and  costs 
aforesaid,  or  any  part  thereof,  but  the  same  to  pay  hitherto  hath 
wholly  refused,  and  still  doth  refuse,  to  the  damage  of  the  said 
plaintiffs  fifteen  hundred  dollars,  and  therefore  they  bring  suit. 

R.  BIDDLE;  Pltjps.  AWy. 

John  Doe,  and  /    ™    i         o 

Richard  Roe,    {    Podges,  &c. 

On  the  2d  of  October,  1821,  Pattersons  attorney  entered  the 
pleas  of  "  mil  tiel  record,"  and   "payment."     A  fi.ja.  was  issued 


Sept.  1822.]  OF  PENNSYLVANIA.  19 

(Patterson  v.  Swan  and  another.) 

to  November  term,  1821,  to  which  the  sheriff'  made  return,  "  su- 
perseded by  writ  of  error." 

The  plaintiff  in  error  assigned  the  following  errors : 

1.  The  praecipe  directs  a  scire  facias  sur  recognizance  of  special 
bail;  the  writ  issued  varies  substantially  from  the  praecipe,  and  does 
not  set  out  any  such  recognizance  as  is  directed. 

2.  The  writ  of  scire  facias  does  not  set  forth  any  description  of 
recognizance  known  to  the  law,  but  is  insensible  and  absurd  in  the 
material  part  of  it. 

3.  The  record  referred  to  in  the  praecipe  contains  no  such  re- 
cognizance as  is  there  directed ;  and  the  recognizance  which  the 
said  record  does  contain,  viz.  a  recognizance  for  the  payment  of  the 
money,  to  obtain  the  stay  of  execution  allowed  to  freeholders,  is  not 
set  out  in  the  scire  facias  ;  the  material  part  of  the  condition  being 
wholly  omitted  therein. 

4.  The  statement  filed  by  the  plaintiff  varies  substantially  from 
the  praecipe  and  the  writ  of  scire  facias. 

5.  The  second  rule,  viz.  the  rule  of  reference  was  not  served  on 
the  party,  nor  in  any  other  way  according  to  law ;  nor  had  the  said 
party  either  actual  or  constructive  notice  of  the  day,  time,  and  place 
of  meeting.  The  copy  of  the  record  on  which  the  arbitrators  acted 
is  not  a  true  copy,  and  the  award  itself  does  not  state  that  the  arbi- 
trators were  sworn  before  they  tried  the  cause. 

6.  There  was  afi.fa.  with  a  levy  on  it  undisposed  of,  pending 
against  the  defendant  in  the  original  action,  at  the  time  the  scire 

facias  was  issued  against  the  bail — the  issuing  of  the  scire  facias 
was  therefore  illegal. 

Hopkins,  for  the  plaintiff  in  error.  The  sci.fa.  does  not  state  the 
condition  of  the  recognizance,  and  therefore  no  judgment  upon  it 
can  stand.  He  referred  to  the  act  of  21st  March,  1806,  sect.  7. 
Purd.  Dig.  202. 

Biddle.  for  the  defendant  in  error.  The  condition  of  the  recog- 
nizance was  forfeited,  and  therefore  the  plaintiff  had  a  right  to  pro- 
ceed on  it,  although  he  had  issued  execution  and  levied  on  the 
property  of  the  defendant,  provided  he  had  not  obtained  satisfaction. 
It  is  like  the  case  of  security  on  a  writ  of  error. 

Gibson,  J.  delivered  the  opinion  of  the  court. 

Various  errors  have  been  assigned  ;  no  one  of  which  is  of  suffi- 
cient importance  to  merit  consideration,  except  the  last.  The  de- 
fendant in  the  original  suit  entered  bail  to  entitle  him  to  a  stay  of 
execution,  according  to  the  act  of  the  21st  March,  1806  :  and  after 
the  expiration  of  the  cesset,  the  plaintiff  took  out  a  fieri  facias  and 
levied  on  the  defendant's  real  property ;  on  the  return  of  which  he 
issued  this  scire  facias  against  the  bail :  and  the  question  now  is, 
whether  he  was  bound  to  make  his  election  between  the  defendant 
in  the  first  action  and  his  bail,  or  whether  he  might  pursue  both 


20  SUPREME  COURT  [Pittsburgh, 

(Patterson  v.  Swan  and  another.) 

together?  It  is  obvious  that  these  stand  in  the  relation  of  principal 
and  surety.  The  form  of  the  security  is  immaterial,  as  they  are  both 
liable  for  the  same  debt,  although  by  different  responsibilities ;  the 
judgment  fixing  the  one,  and  the  recognizance  the  other.  The 
engagement  of  the  bail  is  not  conditional,  to  pay  in  case  the  princi- 
pal does  not — in  which  case  he  might  perhaps  not  be  liable,  till  all 
means  to  recover  the  debt  from  the  latter  were  exhausted  ;  but  both 
are  liable  concurrently  ;  and  it  is  not  pretended  that  recourse  might 
not  be  had  to  the  bail  in  the  first  instance.  It  is  therefore  difficult 
to  see  why  recourse  might  not  be  had  to  both  together.*  What  in- 
jury can  it  do  to  the  bail?  Standing  in  the  relation  of  a  surety,  if 
he  could  object  in  any  case,  it  would  be  where  the  principal  was 
not  called  on.  Here,  whatever  is  recovered  on  the  judgment  against 
the  principal,  will  be  for  his  benefit ;.  for  clearly  the  plaintiff  can 
have  but  one  satisfaction.  It  is  well  settled,  that  the  doctrine  of 
election  holds  only  where  the  remedies  are  inconsistent  with  each 
other  ;  and  here  they  are  not  so.  Nor  is  it  pretended  that  the  levy 
was  satisfaction,  as  between  the  plaintiff  and  the.  defendant  in  the 
original  judgment :  and  where  a  number  are  concurrently  liable,  they 
all  remain  so  till  satisfaction  is  actually  received  from  some  of  them. 
It  is  perfectly  clear,  therefore,  that  the  plaintiff  might  pursue  the 
principal  or  his  surety  ;  or  both  at  the  same  time. 

Judgment  affirmed. 


[Pittsburg,  September  27,  1822.J 

FETTERMAN  for  the  use   of  FETTERMAN   against   PLUM- 
PER'S Administrator. 

Where  a  chose  in  action  is  equitably  assigned,  and  suit  is  afterwards  brought  by  the 
assignee,  in  the  name  of  the  assignor,  for  his  use,  the  assignor,  if  he  have  no  in- 
terest, is  a  competent  witness  for  the  plaintiff. 

Writ  of  error  to  Venango  county,  in  an  action  brought  by 
the  plaintiff  in  error,  on  a  single  bill  of  Samuel  Plummer  to  John 
Fettennan,  dated  August  7th,  1S05,  for  100  dollars,  payable  on 
demand.  The  plea  was  payment,  with  leave  to  give  the  special 
matters  in  evidence.  The  plaintiff,  after  having  given  the  single 
bill  in  evidence,  and  an  equitable  assignment  of  it,  dated  Novem- 
ber 1st,  1810,  by  John  to  James  Fetterman,  indorsed  thereon, 
proved  by  the  testimony  of  Ralph  Martin,  Esq.  attorney  at  law, 
that  he  had  received  the  single  bill  from  James  Fetterman,  to 
bring  suit  upon  it  against  Plummer;  that  the  bill  was  in  his  pos- 
session about  a  year,  and  that  while  it  was  in  his  possession,  he 
had  called  upon  an  agent  of  Plummer  to  make  an  arrangement  for 
the  payment  of  the  money.  He  then  offered  John  Fetterman  as 
a  witness,  who  was  objected  to  on  the  ground  that  he  was  the  plain- 


Sept.  1822.]  OF  PENNSYLVANIA.  21 

(Fetterman  v.  Plummer's  Administrator.) 

tiff"  in  the  cause.     The  court  sustained  the   objection,  and   sealed 
a  bill  of  exceptions. 

Selden,  for  the  plaintiff  in  error. 

The  witness  offered  and  rejected  was  merely  a  nominal  plaintiff, 
who  before  the  action  was  brought,  had  parted  with  all  his  inte- 
rest in  the  single  bill  on  which  it  was  founded,  and  who  therefore 
had  neither  interest  in  it,  nor  control  over  it,  and  who  was  not 
answerable  for  the  costs.  There  was  consequently  no  objection  to 
his  being  sworn,  except  that  he  was  a  party  on  the  record,  which 
forms  no  reason  for  his  exclusion,  .Man  v.  Ward,  2  Jitk.  229. 
Steele  v.  Phcenix  Ins.  Co.  3  Binn.  306.  M'Ewing^v.  Gibbs,  4 
Dall.  137. 

Forward,  contra,  did  not  deny  that  a  nominal  plaintiff  might  be 
a  witness,  provided  the  court  were  satisfied  that  he  had  no  interest, 
but  insisted  that  his  being  a  party  on  the  record  was  prima  facie 
evidence  of  his  being  interested,  and  that  it  lay  upon  the  cestui 
que  use  to  show  that  he  was  not.  It  did  not  appear  to  this  court 
that  the  witness  was  destitute  of  interest,  for  he  might  have  agreed 
to  be  answerable  to  the  assignee,  in  case  he  failed  to  recover 
against  the  defendant,  or  there  might  have  been  fraud,  and  in  either 
case  the  witness  was  clearly  interested. 

Farrelly,  in  reply,  said,  that  it  was  incumbent  on  the  party  who 
objected  to  the  witness  to  show  interest.  It  did  not  appear  to  the 
court  below,  that  he  had  any  interest,  or  that  there  was  any  other 
objection  than  his  being  a  party  on  the  record;  and  this  court  will 
not,  for  the  purpose  of  sustaining  his  exclusion,  presume  either 
fraud,  or  an  agreement  to  be  responsible  to  the  assignee  if  he  failed 
in  this  suit. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  only  question  is,  can  the  nominal  plaintiff  who 
has  assigned  equitably  an  obligation  under  seal,  be  received  as  a  wit- 
ness to  support  the  action.  The  person  holding  the  beneficial  in- 
terest in  a  chose  in  action  not  assignable,  or  one  which  is  assignable, 
but  where  the  assignment  does  not  pursue  the  prescribed  foim,  is  re- 
garded as  the  real  party.  This  instrument  was  equitably  assign- 
ed to  James  Fetterman  before  the  bringing  of  the  action.  The 
suit  was  commenced  and  carried  on  by  him  and  for  his  use.  If  the 
defence  set  up  had  been,  that  the  obligee  had  received  payment,  or 
the  consideration  failed,  or  the  obligation,  for  some  cause,  never  re- 
coverable by  the  obligee,  he  was  not  a  competent  witness,  for  he 
would  be  liable  over  either  on  an  implied  agreement,  or  on  the 
ground  of  fraud,  and  was  directly  interested  in  the  event  of  the 
cause.  What  testimony  had  been  given  by  defendant,  the  bill  of 
exceptions  does  not  state,  nor  does  it  appear  what  John  Fetterman 
was  called  to  prove ;  he  is  rejected,  not  because  he  was  interested, 
but  solely  from  his  character  as  plaintiff.     This  doctrine  was  very 


22  SUPREME  COURT  [Pittsburgh, 

(Fctterman  v,  Plummcr's   Administrator.) 

fully  considered  in  Steel  v.   Phcenix  Ins.   Com.  3  Binn.  306.     The 
rule   there   laid  down,  was  "  that  a  plaintiff,  who  after  the  com- 
mencement of  the  action,  has  assigned  his  property  to  trustees,  for 
the  benefit  of  his  creditors,  and  released  all  money  that  may  be  re- 
covered in  that  suit,  is  a  competent  witness,  if  all  the  costs  are  paid 
before  the  witness  is  sworn."     The  principles  of  this  decision  were 
adopted   by    Washington,  Justice    in    Willing  et  al   v.    Consequa, 
1  Peters,  308 ;  and  the  foundation  of  the  rule,  that  a  party  to  a  suit 
cannot  be  a  witness,  is,  the  interest  which  he  has  in  the  event,  both 
as  to  costs  and  the  subject  in  dispute,  and  when  that  is  removed, 
the  objection  must  cease.     In  these  equitable  assignments,  the  name 
of  the  assignor  must  from  necessity  be  used  ;  the  form  of  action  re- 
quires that  it  should  be  used  as  plaintiff,  nor  could  he  refuse  its  use. 
From  the  very  nature  of  the  transaction,  he  agrees  that  it  shall  be 
so  used  ;  he  is  the  nominal  plaintiff,  he  has  the  legal  title,  but  he  is 
merely  a  trustee,  and  the  name  of  cestui"  que  trust  inserted  in  the 
record  is  notice  of  the  trust;  he  has  no  interest  in,  nor  power  over 
the  action.     A  trustee  having  the  legal  estate,  but  having  no  real 
interest,  is  examined   every  day  in  a  Court   of  Chancery,  Athly  v. 
Tate,  3  Atk.  604.     There  is  a  clear  distinction,  where  the  assign- 
ment is  before,  and  where  it  is  after  action  brought.     The  nominal 
plaintiff  is  not  liable  for  costs  where  the  transfer  is  bona  fide,  and 
before  action  brought,  and  takes  no  part  in  carrying  on  the  suit,  and 
is  to  gain  nothing  by  its  termination,  JYestor  v.    Walker,  2  Brown 
171.     He  is  liable  where  he  brings  the  action  before  assignment ; 
he  sues  in  his  own  name,  and  for  his  own  use,  and  he  cannot  dis- 
charge himself  from  this  liability,  by  a  subsequent  transfer  of  the 
right  of  action.    But  when  the  assignment  is  before  action,  it  is  very 
different;   there  from  the  first  he  is  merely  nominal,  suffering  that 
which  he  could  not  prevent,  his  name  to  be  used  as  a  trustee,  by  the 
cestui  que   trust.     In  Drum's  Lee  v.   Simpson,   6   Binn.  485,  the 
trustee  was  admitted  as  a  witness,  though  there  he  was  received  to 
testify  against  the  supposed  cestui  que  trust.     The  chief  justice  in 
delivering  the  opinion  of  the  court  states,  that  the  name  of  the  trus- 
tee is  used  by  the  cestui  que  trust,  who  is  liable  for  the  costs  of  suit, 
and  is  in  fact  the  only  party  interested,  and  that  the  practice  of  the 
English  Chancery  to  admit  a  trustee  as  a  witness  has  been  uniform- 
ly adopted  in  the  courts  of  law  of  Pennsylvania.     There  was  no  in- 
terest in  John  Fetter  man,  nor  was  he  objected  to  on  account  of  in- 
terest in  the  cause,  but  merely  in  his  character  of  plaintiff,  and  as  he 
would  not  be  liable  for  costs  in   any  event,  no  objection  remain- 
ed ;  it  was  as  much  removed  as  if  the  costs  had  been  paid  into  court. 
The  witness  should  have  been  admitted,  and  the  judgment  is  there- 
fore reversed,  and  a  venire  facias  dc  nova  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


Sept.  1822.]  OF  PENNSYLVANIA.  23 

[Pittsburgh,  Sept.  27,  1822.] 
PAUL  and  another  against  HARDEN. 

IN  ERROR. 

Where  there  is  a  general  verdict  on  several  count?,  the  court  cannot  amend  the 
judgment  by  entering  it  specially  on  one  count  and  leaving  the  other  count  with- 
out a  judgment,  though  they  might  amend  the  verdict,  and  then  malic  the  judg- 
ment correspond. 

Writ  of  error  to  Fayette  county,  in  an  action  on  the  case, 
brought  by  the  defendant  in  error  against  the  plaintiffs  in  error. 
The  declaration  contained  two  counts,  on  which,  at  the  trial,  a  ge- 
neral verdict  was  taken  for  the  plaintiff  below,  and  judgment  entered 
thereon.  On  the  removal  of  the  record  to  this  court,  several  errors 
were  assigned,  only  one  of  which  is  now  material,  since  this  court, 
in  delivering  its  opinion,  noticed  no  other.     It  was  as  follows  : 

After  the  writ  of  error  brought,  bail  in  error  given,  and  writ  pro- 
duced to  the  Court  of  Common  Pleas,  that  court  ordered  an  amend- 
ment of  the  judgment,  by  entering  it  specially  on  the  first  count  of 
the  declaration  and  gave  no  judgment  on  the  second  count. 

After  argument  by  Ross,  for  the  plaintiffs  in  error,  and  by  Ken- 
nedy and  Campbell  for  the  defendant  in  error,  the  judgment  of  the 
court  was  delivered  by 

Duncan,  J.  There  are  various  errors  assigned  on  this  record  :  to 
the  declaration,  to  the  issue,  to  the  appeal,  and  to  the  judgment. 
The  court  will  confine  their  inquiry  and  decision  to  the  fifth  error 
assigned;  the  amendment  of  the  judgment,  by  entering  it  specially 
on  the  first  count,  and  not  giving  any  judgment  on  the  second  count. 
Every  count  states  a  distinct  cause  of  action,  and  where  there  are 
several  counts  in  the  declaration,  and  some  of  them  so  faulty  that  a 
verdict  will  not  cure  the  defect,  and  evidence  to  support  the  good 
counts  has  been  given,  the  court  will  direct  the  verdict  to  be  entered 
on  the  good  counts,  and  this  is  done  at  any  time  during  the  term, 
though  after  writ  of  error  delivered.  But  in  this  case  the  verdict 
was  a  general  one,  and  it  is  not  amended  by  the  court's  directing  the 
verdict  to  be  taken  on  one  count.  The  judgment  is  general  and 
afterwards  amended  by  the  court  directing  judgment  to  be  entered 
on  the  first  count.  If  the  court  had  amended  the  verdict  by  di- 
recting it  to  be  taken  on  the  first  count,  and  then  entered  a  judg- 
ment, this  court  might  have  considered  it  in  the  same  light  as  if  a 
verdict  had  been  found  for  the  plaintiff  on  the  first  count,  and  for 
the  defendant  on  the  second.  But  the  court  permitted  the  general 
verdict  to  stand.  They  do  not  amend  nor  take  any  order  on  it,  but 
enter  a  judgment  on  one  count  only,  leaving  the  verdict  on  both 
counts  on  the  record,  and  disposing  of  one  only  by  judgment.  On 
a  general  finding,  not  amended  by  entering  the  verdict  on  one 
count,  the  judgment  must  be  general  ;  for  in  no  other  way  can  the 


24  SUPREME  COURT  [Pittsburgh, 

(Paul  and  another  v.  Harden.) 

defect  of  a  general  verdict,  where  there  are.  bad  or  inconsistent 
counts,  be  cured,  but  by  entering  the  verdict  on  the  good  counts. 
It  is  the  verdict  that  is  to  be  altered  ;  the  judgment  cannot  amend 
or  change  that.  The  record  presents  a  general  finding  for  the  plain- 
tiff on  both  counts,  and  a  judgment  only  on  one  of  them;  thus 
leaving  a  portion  of  the  cause  on  the  record  without  a  judgment 
either  for  plaintiff  or  defendant.  This  court  are  not  friendly  to  nice 
and  technical  objections,  where  the  cause  has  been  tried  on  its 
merits  ;  but  no  principle  can  be  found  to  support  this  judgment, 
which  is  partial,  where  the  judgment  is  general.  This  being  a  re- 
versal for  an  error  in  the  judgment,  a  venire  facias  de  novo  cannot  be 
granted  ;  and  this  has  rendered  it  unnecessary  to  give  any  opinion 
on  the  other  matters  assigned  as  errors. 

Judgment  reversed. 


*fc>' 


[Pittsburgh,  Sept.  28,  1822.] 

M'CLURG  and  another  against  BOWERS,  Special  Bail  of 

WHITING. 

IN  ERROR. 

Special  bail  has  until  the  quarto  die  post  to  surrender  the  principal. 

If  the  principal  be  in  court  within  the  four  days  ready  to  be  surrendered,  and  the 
court,  on  a  rule  to  show  cause  why  he  should  not  be  surrendered,  hold  the  matter 
under  advisement,  without  committing  the  principal,  he  may  be  surrendered  when 
the  court  make  the  rule  absolute,  although  the  four  days  have  expired. 

Query. — Whether  an  order  for  an  exoneretur  be  the  subject  of  a  writ  of  error  ? 

It  appeared  from  the  record  of  this  case  returned  on  a  writ  of 
error  to  Allegheny  county,  that  it  was  a  scire  facias  against  special 
bail.  On  the  fourth  day  after  the  return  of  the  writ,  the  defendant 
having  the  principal  in  court,  ready  to  be  surrendered,  obtained  a 
rule  on  the  plaintiffs,  lo  show  cause,  why  the  surrender  should  not 
be  made  as  of  the  first  day  of  the  term,  and  an  exoneretur  entered  on 
the  bail  piece.  The  court  held  the  case  under  advisement  until  the 
21st  of  the  following  January,  and  then  ordered  that  the  rule 
should  be  made  absolute,  the  defendant  paying  the  costs  of  his  rule, 
and  also  the  costs  of  the  scire  facias.  The  principal  was  immedi- 
ately surrendered  and  an  exoneretur  entered,  upon  which  the  plain- 
tiffs sued  out  a  writ  of  error. 

Hopkins,  for  the  plaintiffs  in  error. 

Ross,  for  the  defendant  in  error. 

Tilghman,  C.  J.  delivered  the  court's  opinion. 

This  is  a  scire  facias  against  special  bail.  On  the  4th  day  after  the 
return  of  the  writ,  the  defendant  having  the  principal  in  Court,  ready 
to  be  surrendered,  obtained  a  rule  on  the  plaintiffs  to  show" cause, 


Sept.  1822.]  OF  PENNSYLVANIA.  25 

(M'Clurg  and  another  v.  Special  Bail  of  Whiting.) 

why  the  surrender  should  not  be  made,  as  of  the  first  day  of  the 
term,  and  an  exoneretur  entered  on  the  bail  piece.  The  court  held 
the  case  under  advisement  until  the  21st  January  following,  and 
then  ordered  that  the  rule  should  be  made  absolute,  the  defendant 
paying  the  costs  of  his  rule,  and  also  the  costs  of  the  sci.fa.  On 
this  the  principal  was  immediately  surrendered,  and  an  exoneretur 
entered. 

Two  questions  have  been  made :  1st,  Whether  the  bail  was  en- 
titled to  four  days  for  surrender,  after  the  return  day  of  the  writ. 
2d,  Supposing  he  was,  whether  the  surrender  ought  not  to  have 
been  made  on  the  fourth  day,  and  not  delayed  till  the  21st  January, 
when  the  court  made  the  rule  absolute.  As  it  is  the  desire  of  the 
bar  to  have  the  practice  settled  by  the  opinion  of  this  court,  we 
will  give  our  opinion,  although  we  do  not  consider  the  case  as 
brought  regularly  before  us,  because  it  does  not  appear  by  the  re- 
cord, that  the  sci.  fa.  has  been  finally  disposed  of  in  the  court 
below.  There  has  been  neither  judgment  nor  discontinuance 
entered.  And  even  if  the  sei.  fa.  had  been  ended,  it  would  be  a 
question,  whether  an  order  for  an  exoneretur  be  the  subject  for  a 
writ  of  error. 

We  consider  it  as  settled  by  long  practice  and  understanding, 
that  the  bail  has  till  the  quarto  die  post,  to  make  the  surrender. 
It  was  so  decided  by  this  court,  before  the  revolution,  and  has 
been  so  held  ever  since.  Prior  to  the  revolution  we  had  no  printed 
reports ;  and,  if  no  case  on  this  point  has  been  reported  since,  it 
probably  is,  because  the  law  has  been  considered  as  too  well 
settled  to  admit  of  dispute. 

The  principal  was  in  court  ready  to  be  surrendered  within  the 
four  days;  and  if  the  plaintiff* had  consented  to  accept  the  surren- 
der and  enter  an  exoneretur,  he  would  have  been  immediately 
surrendered.  But,  as  the  court  thought  proper  to  hold  the  case 
under  advisement,  we  do  not  think  it  right  that  the  bail  should 
suffer  for  it.  The  court  might  have  ordered  the  surrender  to  be 
made,  and  committed  the  principal ',  while  they  kept  the  matter 
under  consideration ;  but  they  did  not,  and  it  was  understood,  that 
until  they  decided,  every  thing  respecting  the  surrender  should 
remain  in  statu  quo.  Under  these  circumstances,  we  think  the  bail 
should  be  protected  ;  and  we  should  not  reverse  the  order  for  the 
exoneretur,  even  if  the  case  could  be  brought  before  us  in  such  a 
shape  as  would  authorize  us  to  decide  on  it. 


VOL.  ix.  D 


26  SUPREME  COURT  [Pittsburgh, 

[Pittsburgh,  September,  1822.] 

COOPER  and  another  against  SMITH. 

IN  ERROR. 

In  an  action  of  ejectment  to  which  the  general  issue  is  pleaded,  it  must  appear,  that 
the  defendant  dispossessed  the  plaintiff,  or  was  in  the  actual  possession  of  the  land, 
or  the  plaintiff  will  be  defeated. 

The  return  of  the  sheriff  under  the  act  of  assembly  of  April  13th, 1807,  is  only  pri- 
ma facie  evidence  of  the  possession  of  any  defendant,  whether  his  name  be  in  the 
writ  of  ejectment,  or  be  added  by  the  sheriff;  and  such  defendant  may  rebut  it,  by 
showing  that  he  was  not  in  possession. 

The  act  of  assembly  of  March  11th,  1784,  authorizing  John  Sumral  to  establish  a 
ferry  over  the  Youghiogany  river,  did  not  vest  a  right  in  him  to  land  upon  the 
landing  of  any  persons  without  their  consent. 

A  possession  to  prevent  a  recovery,  or  vest  a  right,  under  the  statute  of  limitations, 
must  be  actual,  continued,  adverse,  and  exclusive.  An  easement  claimed  out  of 
the  land  of  another,  can  never  be  the  subject  of  such  limitation,  for  it  is  not  con- 
stant, exclusive,  and  adverse ;  but  a  continued,  exclusive  possession  and  enjoy- 
ment, with  the  knowledge  and  acquiescence  of  the  owner  of  the  inheritance,  for 
twenty-one  years,  would  be  evidence  from  which  a  jury  might  presume  a  right,  by 
grant  or  otherwise,  to  such  easement. 

Bela  Smith,  the  defendant  in  error,  brought  an  ejectment  in  the 
Common  Pleas  of  Westmoreland  county,  against  the  plaintiffs  in 
error,  Robert  Cooper  and  John  Robb,  to  recover  a  piece  of  land, 
bounded  on  the  Youghiogany  river,  and  included  within  the  limits 
of  Smith's  survey.  The  writ  was  served  upon  Robb,  who  pleaded 
not  guilty,  with  leave  to  take  a  special  defence ;  and  Cooper  was 
admitted  as  a  defendant,  and  pleaded  "  not  guilty,  with  leave  to  take 
a  special  defence,"  and  took  defence  "  for  a  ferry  across  the  Youg- 
hiogany river,  where  the  great  road  from  Somerset  through  Mount 
Pleasant  and  Robbstown  to  Washington,  in  Pennsylvania,  crosses 
said  river  at  or  near  the  lands  mentioned  in  the  writ ;  and  also, 
for  a  landing-place  for  the  boats  and  craft  used  at  said  ferry,  on 
the  south  side  of  the  river,  being  50  feet  in  length  on  the  beach  of 
said  river,  and  extending  10  feet  from  said  river  along  said  great 
road."  Upon  the  trial  at  a  special  court  held  by  President  Roberts, 
Smith  gave  in  evidence  a  location,  j\To.  2305,  for  300  acres  of  land, 
by  Francis  Allison,  Jun.  dated  April  3d,  1769,  for  whom  a  survey- 
was  made,  including  194^  acres  of  land,  on  the  22d  May,  1770, 
upon  which  survey  a  patent  issued  to  Allison  on  the  24th  of  Febru- 
ary, 1783.  He  also  gave  in  evidence,  the  will  of  Allison,  dated  9th 
May,  1813,  and  articles  of  agreement  'between  the  executors  of 
Allison  and  himself,  dated  26th  September,  1815.  He  then  pro- 
duced Joseph  Vanhirh,  a  witness,  who  testified,  that  he  had  been 
called  upon  by  Isaac  Robb,  in  1804,  to  survey  the  land,  that  Robb 
showed  him  a  poplar  stump  for  a  corner,  and  he  found  the  lines, 
which  were  too  long,  the  line  ]V.  10  degrees  E.  96  perches,  mea- 
suring 109|  perches,  that  there  was  a  fence  in  the  division  lines  be- 
tween  Sumral  and  Allison.  Witness  knew  the  land  since  1800, 
and   for   10   years  before.     H.   Bartlctt  lived  on  Allison's  place 


Sept.  1822.]  OF  PENNSYLVANIA.  27 

(Cooper  and  another  v.  Smith.) 

about  thirty  years  ago,  and  S.  Reed  lived  on  it  in  1800.  Witness 
ferried  from  both  sides  for  about  two  years  at  a  time.  One 
McBeath  then  came  there,  and  was  the  tenant  of  Sumral  as  well  as  of 
Allison,  who  used  the  ferry  for  a  year  and  a  half  or  two  years.  In 
1801  witness  rented  the  place  from  judge  Young,  who  was  Allison's 
agent,  and  the  tenant  of  witness  ferried  some  during  that  time.  It 
was  not  then  considered  of  any  great  consequence,  and  McBeath 
got  tired  of  it  and  gave  it  up.  In  1805  witness  leased  to  one  Green 
who  lived  there  a  year,  and  witness  kept  the  ferry  and  used  it  on 
both  sides.  Isaac  Robb  lived  on  SumraVs  land  in  1806,  and  witness 
kept  the  ferry  in  1805,  1806,  1807.  W.  C.  Lnken  rented  of  Judge 
Young,  and  left  the  place  about  1814  or  1815,  he  ferried  a  good 
deal,  and  there  was  much  contention  about  it ;  Sumral  always 
claimed  the  Fort  field,  and  showed  witness  a  copy  of  Allison's  pa- 
tent, and  seemed  satisfied  the  claim  went  to  the  river.  The  Sum- 
rals  used  the  ferry  when  Bartlett  lived  there.  The  great  road 
from  Robbstown  to  Williamsport  and  Washington  crosses  this  ferry, 
and  it  was  travelled  as  a  public  road,  when  witness  first  knew  it, 
and  it  has  not  been  since  materially  altered  at  the  landing.  The 
Sumrals  were  away  in  1798,  and  then  one  Shank  ferried,  and  one 
Purly  in  1799  ;  they  lived  in  the  ferry-house  at  Robbstown,  Mc 
Beath  lived  in  SumraVs  house  in  1798,  and  rented  SumraVs  property 
from  Sumral  and  Allison's  from  judge  Young.  Robb  was  constantly 
bringing  suits  against  Luken  for  ferrying,  and  always  succeeded. 
McBeath  occupied  the  ferry  in  1802  and  1803,  and  in  1804,  1805, 
1806,  and  1807,  witness  occupied  both  sides,  and  lived  on  the 
Robbstown  side,  and  McBeath  on  SumraVs  land. 

Andrew  Robertson,  a  witness  produced  by  Smith,  testified,  that 
in  1775,  Sumral  was  said  to  be  a  tenant  under  one  Miller.  That 
Bartlett,  who  claimed  under  Allison,  lived  on  Allison's  land  in  1791  or 
1792,  being  the  first  man  who  had  a  house  there,  he  stayed  till 
1794,  when  he  died.  Sumral  rented  the  land  from  Allison  in  1798, 
and  occupied  the  ferry  when  Bartlett  lived  there.  In  1775  Sum' 
ral  lived  on  the  land  adjoining  to  Allison,  and  then  kept  a  canoe 
to  take  people  across,  and  it  was  then  called  SumraVs  ferry ;  he 
remained  there  and  kept  the  ferry  until  he  died,  sometime  about 
1794,  and  his  heirs  remained  there  and  kept  the  ferry  for  some 
years  after.  McBeath  then  lived  there  and  kept  the  ferry.  One 
Isaac  Morgan  occupied  both  sides  of  the  ferry,  and  after  him  John 
Robb  lived  in  SumraVs  house  and  occupied  the  ferry.  It  had  ge- 
nerally been  known  by  the  name  of  SumraVs  ferry  ever  since  wit- 
ness knew  the  country.  John  Robb  settled  there  5  or  6  years  ago, 
and  no  one  ferried  on  that  side  since  he  went  there,  except  him- 
self or  those  who  held  under  him.  One  Shroeder  rented  from 
Allison  about  4  or  5  years  ago,  and  Luken  ferried  under  him. 
Robb  and  Luken  disputed  about  the  ferry,  and  Robb  has  held  it  ever 
since  Smith  bought.  John  Orr  testified,  that  Bartlett  first  settled  on 
Allison's  land,  which  Sumral  had  occupied  before,  but  Bartlett 


2&  SUPREME  COURT  [Pittsburgh, 

(Cooper  and  another  v.  Smith.) 

never  occupied  the  ferry.  John  Robb  and  Luken  had  a  dispute 
about  it,  they  both  lived  there  at  the  same  time,  and  witness  had 
crossed  in  both  their  boats,  but  did  not  know  whether  Robb  claimed 
it  himself;  he  lived  in  SumraPs  house.  One  Vankirk  once  occu- 
pied the  ferry  and  lived  on  the  Robbstown  side  chief  part  of  the 
time.  Witness  first  knew  Sumral  in  1786,  he  then  lived  on  the 
land  adjoining  Allison's  and  occupied  the  ferry,  which  was  always 
called  SumraPs  ferry. 

William  Campbell  testified,  that  Sumral  claimed  the  ferry  and 
that  he  had  known  it  by  the  name  of  SumraPs  ferry  more  than 
thirty  years  ago,  that  Sumral  then  lived  on  the  land  adjoining  Dr. 
Allison's  and  occupied  the  ferry. 

James  Murray  testified  to  Robtfs  claim,  and  that  when  he  made 
a  survey  for  Robb,  it  was  objected  to  by  Cooper,  who  said  he  was 
agent  for  Sumral,  and  that  Robb  had  no  title. 

The  plaintiff*  then  gave  in  evidence  the  record  of  an  action  of 
ejectment,  brought  in  the  year  1798,  by  Benjamin  Davis,  to  re- 
cover 500  acres  of  land.  Davis's  claim  embraced  SumraVs  land, 
and  great  portion  of  Dr.  Allison- 's,  then  occupied  by  his  tenant,  the 
widow  of  Barflett.  Dr.  Allison  was  made  a  co-defendant  to  this  ac- 
tion, in  which  the  defendants  had  a  verdict.  He  also  gave  in  evi- 
dence three  letters  from  John  Sumral  to  Dr.  Allison,  dated  October 
4th,  1786,  April  8th,  1789,  and  June  18th,  1791,  in  the  first  of  which 
he  referred  to  the  old  location,  and  in  that  of  1798,  said,  he  had  a 
separate  patent  for  the  ferry. 

On  the  part  of  the  defendant,  the  act  of  assembly  of  11th  March, 
1784,  (2  Dal.  Laws,  175,)  was  relied  upon,  and  John  Bedsworth 
testified,  that  he  knew  SumraPs  ferry  since  Sumral  first  used  it, 
that  he  kept  it,  and  it  was  his,  while  he  lived.  When  witness  came 
there  in  1769,  there  was  no  ferry.  Sumral  came  there  after  that 
time.  Witness  could  not  say  who  had  possession  after  SumraPs 
death,  but  he  knew  of  Luken  being  there. 

President  Roberts  charged  the  jury  in  substance  as  follows: 
"This  is  an  ejectment  for  a  piece  of  land  bounded  on  the  Youghio- 
gany  river,  and  embraced  within  the  plaintiff's  survey.  That 
the  plaintiff  has  exhibited  a  clear  legal  title  by  location,  sur- 
vey, and  patent,  is  not  controverted,  but  admitted.  This  case,  as 
has  been  stated  on  the  part  of  the  defendant,  lies  within  a  nar- 
row compass ;  and  the  candour  with  which  the  defence  has  been 
conducted,  so  narrows  the  ground,  that  it  results  in  a  question  of 
law,  upon  which  it  is  the  duty  of  the  court  to  give  an  opinion. 
There  is  no  doubt  but  that  the  land  embraced  within  the  plaintiff's 
survey  belongs  entirely  to  him,  and  that  such  survey  extends  to  the 
river,  cannot  be  controverted.  The  defendant  claims  no  part  of 
it,  but  he  claims  an  easement  in  it,  i.  e.  a  right  to  land  boats  upon  it 
and  to  pass  through  a  part  of  it.  He  founds  his  claim  to  this  ease- 
ment upon  the  statute  of  limitations — in  other  words,  he  says,,  he 


Sept.  1822.]  PENNSYLVANIA.  29 

(Cooper  and  another  v.  Smith.) 

has  had  such  a  long  uninterrupted  possession  as  that  statute  will 
protect.  Now  where  is  the  evidence  to  establish  such  a  claim  ? 
Does  the  evidence  show  any  claim  set  up,  or  even  pretended,  by 
Sumral  to  a  right  of  way  over  the  lands  of  Dr.  Allison  ?  Does  he 
claim  the  land  itself,  or  an  easement  on  the  lands  of  another  ?  I  re- 
fer you  to  his  letter  of  the  4th  of  October,  1786,  in  which  he  no- 
tices the  old  location  ;  to  his  letter  of  1789,  where  he  mentions  his 
having  a  separate  patent  for  the  ferry  ;  and  to  the  letter  of  18th 
June,  1791  :  In  1798  a  suit  was  brought  by  Benjamin  Davis  for 
five  hundred  acres  of  land,  embracing  SumraVs  land,  and  a  great 
part  of  Dr.  Allison's,  then  occupied  by  his  tenant,  the  widow  of 
Bartlett.  Dr.  Allison  was  made  a  co-defendant,  and  the  verdict 
was  for  the  defendants.  The  statute  of  limitations  wras  intended 
for  the  repose  of  society,  in  order  that  where  there  has  been  a  long 
uninterrupted  possession,  it  should  not  be  disturbed.  But  to  protect 
a  possession  under  this  act,  it  must  be  an  actual,  not  a  constructive 
possession — and  so  of  an  easement — the  actual  and  uninterrupted 
use  of  it,  as  in  the  cases  quoted  of  ancient  lights,  upon  which  sub- 
ject questions  frequently  arise  in  ancient  and  crowded  cities,  where 
the  confined  space  which  persons  may  have  for  building,  renders 
it  desirable  for  persons  to  have  windows  opening  into  their  neigh- 
bour's lots.  This  privilege  is  sometimes  purchased  ;  sometimes, 
perhaps,  gratuitously  granted.  However  this  may  be,  if  persons, 
owning  the  grounds  adjoining  such  buildings,  suffer  the  windows 
open  into  their  ground,  to  remain  open  for  21  years,  a  reasonable 
presumption  is  afforded,  that  a  privilege  has  been  granted  ;  and  after 
such  a  lapse  of  time,  and  constant  acquiescence,  the  law  will  not 
suffer  the  enjoyment  of  it  to  be  disturbed.  Now  what  kind  of  pos- 
session had  Sumral'?  As  to  the  ferrying  across  the  river,  he  had  a 
right  to  do  it,  and  the  act  of  assembly  of  March  11th,  1784,  sanc- 
tioned that  right ;  but  I  cannot  conceive  that  the  act  of  assembly  has 
any  bearing.  It  is  said  that  the  legislature  have  a  right  to  regulate 
ferries — be  it  so — they  have  also  a  right  to  regulate  pedlars,  public 
inns,  &c,  but  no  legislative  act  authorizes  one  man  to  establish  a 
ferry  on  another  man's  land,  to  land  boats  upon  it,  and  pass  through 
it,  any  more  than  they  could  grant  to  a  pedlar  a  right  of  way 
through  the  lands  of  another  man,  or  authorize  the  establishing  of 
a  public  house  on  the  land  of  another,  against  his  consent.  Sumral 
might  lawfully  ferry  and  land  his  boats  in  the  public  road,  but  if  he 
landed  upon  the  land  of  another,  without  his  consent  he  was  a  tres- 
passer." 

Upon  this  charge,  to  which  the  defendant  tended  a  bill  of  ex- 
ceptions, which  was  sealed  by  the  court,  the  jury  found  for  the 
plaintiff. 

The  plaintiffs  in  error  assigned  the  following  errors. 
1.  That  a  writ  of  ejectment  will  not  lie  for  an  easement,  or  mere 
incorporeal  hereditament.. 


30  SUPREME  COURT  [Pittsburgh, 

(Conpcr  and  another  v.  Smith.) 

2.  The  court  ought  to  have  directed  the  jury,  that  the  statute  of 
limitations  would  protect  the  defendants. 

3.  The  court  ought  to  have  directed  the  jury,  that  they  might, 
and  ought  to  presume  a  grant  of  a  right  to  land  boats  on  the  margin 
of  the  river. 

4.  The  court  ought  to  have  directed  the  jury,  that  the  length  of 
possession  was  in  law  sufficient  from  which  to  presume  a  grant. 

Alexander,  for  the  plaintiff  in  error.  A  writ  of  ejectment  will 
not  lie  for  an  easement,  nor  for  any  incorporeal  thing,  Lefevre  v. 
Lefevre,  4  Serg.  Sf  Rawle,  243.  Black's  Lessee  v.  Hepburn,  2 
Yeates,  331.  The  defendants  pleaded,  "  not  guilty,  with  leave  to 
give  in  evidence  the  claim  of  an  easement ;"  the  trial  was  therefore 
upon  that  issue,  and  the  judgment  was,  to  recover  the  easement. 
The  second,  third,  and  fourth  errors  assigned  may  be  reduced  to  one, 
viz.  that  after  the  length  of  time  we  have  enjoyed  this  easement,  a 
grant  should  be  presumed,  Mayor  of  Kingston  v.  Hull,  Eldridge 
v.  Knott,  1  Cowp.  102,  214.  Provost  v.  Gratz,  6  Wheat.  504. 
Phil.  Evid.  119,  120,  121,  122.  The  act  of  assembly  of  13th 
March,  1782.  (2  Ball.  Laws,  57,)  establishing  ferries  over  the 
Youghiogany  and  Monongahela  rivers,  and  the  act  of  11th 
March,  1784,  authorizing  John  Sumral  to  establish  a  ferry  over 
the  Youghiogany  river,  (2  Ball.  Laws,  175)  declared  those  rivers 
to  be  public  highways.  It  is  matter  of  laio  what  circumstances  will 
justify  the  presumption  of  a  deed.  Stoever  v.  Whitman,  6  Binn. 
416. 

Foster,  for  defendant  in  error.  No  questions  were  proposed  to 
the  court  upon  which  to  charge  the  jury.  This  ejectment  was 
brought  for  a  tract  of  land  ;  the  defendant,  Robb,  pleaded  "  not 
guilty,"  and  afterwards  Cooper  was  admitted  a  defendant,  and  took 
defence  for  a  ferry  across  Youghiogany  river,  for  which  part  de- 
fendants say  they  are  not  guilty.  The  act  of  assembly  makes  the 
sheriff's  return  prima  facie  evidence  of  possession.  It  is,  not  pre- 
tended than  an  ejectment  lies  for  an  easement ;  this  ejectment  was 
for  land;  and  the  sheriff's  return  is  evidence  of  possession  by  the 
defendants,  one  of  whom,  Robb,  claimed  part  of  this  land,  for  he 
had  a  survey  on  it,  and  he  was  the  tenant  of  Cooper,  the  agent  of 
Sumral.  Cooper  was  admitted  to  defend  as  landlord,  and  by  the 
provisions  of  the  second  section  of  the  act  of  April  13th,  1807  (4  Sm. 
Laws,  476,)  admitted  himself  to  be  in  possession.  It  is  well  set- 
tled that  an  ejectment  will  lie  for  a  highway,  and  the  sheriff  may 
deliver  possession  subject  to  the  right  of  way.  Run.  Eject.  130. 
The  defendants'  objection  to  the  charge  of  the  court  is,  that  the  jury 
were  not  directed  to  presume  a  grant  from  Dr.  Allison.  It  is  im- 
possible to  know  what  the  facts  were,  and  the  court  could  only  have 
said,  that  if  they  believed  certain  facts,  they  ought  to  presume  a 
grant.  In  1789  Sumral  rented  of  Dr.  Allison,  and  held  till  1791,  pre- 
vious to  which  time  the  ferry  had  been  only  with  a  canoe.     In  1791, 


Sept.  1822.]  OF  PENNSYLVANIA.  31 

(Cooper  and  another  v.  Smith.) 

Bartlett  became  Allison's  tenant,  and  he,  or  his  widow,  remained 
on  the  land  till  1799.  The  court  was  not  requested  to  charge  on  any 
point,  and  it  is  to  be  presumed  that  the  judge  stated  the  facts  cor- 
rectly ;  taking  the  evidence  as  we  have  it,  the  court  charged  on  the 
law  correctly. 

Alexander  in  reply.  The  contest  between  the  parties  was  exclu- 
sively concerning  the  easement  claimed  by  the  defendants.  We 
know  nothing  of  any  survey  made  by  Robb,  and  the  record  does 
not  show  it.  The  ejectment  was  againt  Robb;  the  sheriff  returned 
u served"  and  Cooper  came  in  as  landlord  and  pleaded  not  guilty 
as  to  a  certain  party  in  which  he  claimed  an  easement.  Not  guilty 
does  not  confess  possession.  There  was  not  title  to  land  in  issue, 
nor  was  there  a  judgment  for  land.  The  plaintiff  ought  not  to  have 
gone  to  trial  upon  such  an  issue,  and  there  has  been  a  mis-trial. 
The  judge  said,  the  cause  was  narrowed  to  a  question  of  law,  on 
which  it  was  his  duty  to  charge  the  jury,  and,  although  not  re- 
quested, if  he  charged  wrong,  it  is  error.  The  question  is  then, 
whether  from  the  evidence  a  grant  to  Robb  ought  not  to  be  pre- 
sumed. Robb's  claim  commenced  in  1770,  and  continued  till  1808 
or  1809,  and  Sumral  in  1808  or  1809,  wrote  to  Allison  that  he 
claimed  the  ferry  under  the  act  of  assembly.  In  1803  or  1804, 
Judge  Young,  as  agent  for  Allison,  leased  the  land  but  did  not  in- 
terfere with  the  ferry,  which  he  never  leased. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  action  of  ejectment  is  one  of  possession;  and  it 
is  no  bar  to  a  recovery  that  another  possesses  a  right  of  way,  or  other 
easement,  for  the  owner  of  the  soil  may  maintain  an  ejectment  for 
land  over  which  a  highway  is  laid  out ;  because,  though  the  public 
have  a  right  to  pass  over  it,  yet  the  freehold  and  all  the  profits  be- 
long to  the  owner,  and  he  may  use  it  in  any  way  not  inconsistent 
with  the  public  right  or  easement.  Chester  v.  Alker,  1  Burr.  138. 
145.  Curtelyou  v.  Vanbrunt,  2  Johns.  357.  Jackson  v.  Hatha- 
way, 15  Johns.  447.  The  plaintiff  below  sued  to  recover  the  pos- 
session of  a  certain  described  tract  of  land,  the  right  to  which  is  ad- 
mitted to  be  in  him.  If  the  defendant  did  not  dispossess  the  plain- 
tiff; if  he  was  not  in  the  actual  possession  ;  on  the  general  issue,  the 
only  plea  in  ejectment,  "  not  guilty,"  he  might  have  defeated  the 
plaintiff;  for  the  allegation  in  his  writ  is,  "  that  the  defendant  has  in 
his  actual  possession,"  &c.  The  return  of  the  sheriff,  by  the  act  of 
13th  April,  1807,  is  made  evidence  of  such  defendants  as  are  mark- 
ed served  by  the  sheriff,  being  in  actual  possession  of  the  whole  or 
part  of  the  premises,  and  this  whether  their  names  are  in  the  writ, 
or  added  by  the  sheriff  on  finding  them  in  possession ;  but  this  is 
only  prima  facie  evidence,  and  the  defendant  may  rebut  it  by 
showing,  that  he  was  not  in  possession.  This  was  a  very  necessary 
amendment  of  the  law ;  for  under  the  ancient  form  of  ejectment,  the 


32  SUPREME  COURT  [Pittsburgh, 

(Cooper  and  another  v.  Smith.) 

plaintiff,  though  defendant  confessed  lease  entry  and   ouster,  was 
frequently  taken  by  surprise  by  a  defendant  calling  on  him  to  prove 
his  possession.     On  the  trial,  the  defendant,  Robb,  appeared,  and 
pleaded  not  guilty  ,with  leave  to  take  a  special  defence.     When 
Cooper,  the  landlord,  was  admitted  to  become  a  defendant,  he  very 
specially  defends  as  for  a  ferry  on  the  Youghiogany  river,  where  the 
great    road    from    Somerset   intersects    the   Mount    Pleasant    and 
Robbstown    road,  to    Washington,   Pennsylvania,  and   crosses  said 
river,  at  or  near  the  land  mentioned  in  the  writ ;  and  also,  for  a  land- 
ing place  for  the  boats  and  craft  of  the  said  ferry,  on  the  south  side 
of  the  said   river,  being  fifty  feet  in  length  up   and  down  the  said 
river,  and  extending  ten  feet  from  said  river  along  said  great  road. 
This  right  of  way  and  of  landing  on  the  ground  of  another,  is  claim- 
ed, first  under  the  act  of  11th  March,  1784,  giving  John  Sumral  a 
right   to   ferry  across    Youghiogany  river.     The   act   contains  this 
clause,  "  Provided  always,  that  nothing  contained  in  this  act  shall 
be  construed  to  vest  a  right  in  the  said  John  Sumral,  his  heirs  or 
assigns,  to  land  any  boat  or  boats  upon  a  landing  belonging  to  any 
other  person  or  persons,  without  their  consent  first  had  and  obtain- 
ed ;"  and  all  the  acts  of  assembly  vesting  ferries  in  particular  per- 
sons, show  the  uniform  opinion  of  the  legislature  to  have  been 
that  to  enable  a  person  to  keep  such  ferry,  he  must  either  hold  the 
ground  where  the  landing  is  made,  or  obtain  the  consent  of  the  owner 
of  the  land  for  that  purpose.     In  Chambers  v.  Furey,  1  Yeates    167. 
when  the  right  to  land  and  receive  freight  on  the  lands  of  another 
on  the  banks  of  a  navigable  stream  without  his  consent,  was  first 
agitated,   this   very  act  authorizing  Sumral  to   keep    a  ferry,  was 
relied  on  as  evidence  of  legislative  construction,  that  there  is  no 
right,    custom,    or   prescription,    in    Pennsylvania,    by  which  one 
man  can    land    or  receive   freight,  on  another's   freehold,  on    the 
banks  of  a  navigable  river,  without  his  consent,  even  though  it  be 
on  a  public  highway.     SumraVs  appears  to  be  the  first  legislative 
act  granting  a  right  to  a  ferry.     An  act  passed  the  same  day,  vest- 
ing a   ferry  over  the  Monongahela  river,  in    John  Ormsby,  with 
a  special  proviso  as  to  landing  boats  on  lands  belonging  to  others 
without  their  consent  first  obtained,  and  every  law  passed  since  con- 
tains a  similar  clause.     It  would  be  a  violation  of  the  constitution  to 
deprive  the  owner  of  the  soil  of  this  right,  and  the  legislature  have 
always  carefully  guarded  against  such  construction  by  the  most  ex- 
plicit declarations.     The   right  to  the  bed  of  a  navigable  river  is 
presumed  to  belong  to  the   commonwealth,  but  the  right  to  the 
adjoining  lands  vests  in  the   owner  of  the   soil ;  hence  arises  the 
right  to  wharves  in  the  city  of  Philadelphia,  and  other  commer- 
cial ports — no  one  can   use  them  without  making  compensation  to 
the  owner.     The  place  where  the  landing  was,  if  a  public  highway,, 
in  an  action  of  trespass  would  not  be  a  justification.     The  position 
of  the  court,  that  Sumral  might  lawfully  ferry  and  land  his  boats 
on  the  public  road,  was  erroneous,  for  this  was  the  very  question  in 


Sept.  1822.]  OF  PENNSYLVANIA.  33 

(Cooper  and  another  v.  Smith.) 

Chambers  v.  Furey ;  and  C.  J.  M'Kean  and  Justice  Yeates  de- 
cided, that  the  dedication  of  ground  for  the  purposes  of  a  public 
road,  gave  no  right  to  others  to  use  it  without  the  consent  of  the 
owners,  for  the  purposes  of  landing  or  receiving  freight.  There 
are  few  ferries  whose  landing  place  is  not  a  public  highway  ;  ferries 
would  become  a  property  in  common,  subject  to  continual  strife, 
and  where  the  strongest  must  ever  prevail.  The  common  law  to 
prevent  this  confusion,  assigns  the  exclusive  right  of  all  property 
capable  of  being  so  enjoyed,  to  some  determinate  owner.  It  has 
assigned  to  the  owner  of  the  soil,  the  right  of  landing  on  his  own 
soil,  on  the  banks  of  all  navigable  rivers.  The  late  proprietors  of 
Pennsylvania  claimed  a  right  by  prerogative  to  grant  patents  for 
ferries ;  but  they  never  did  grant  a  patent  where  the  party  was  not 
possessed  of  lands  on  both  sides  of  the  water,  or  at  least  had  not  the 
permission  of  the  owner  of  the  landing.  The  defendant  sets  up  as 
a  bar  the  act  of  limitations — 21  years'  possession.  The  possession 
to  prevent  a  recovery,  or  vest  a  right  in  the  possessor,  must  be  ac- 
tual, continued,  exclusive.  An  easement  claimed  out  of  the  land  of 
another,  can  never  be  the  subject  of  such  limitation,  for  it  is  not 
constant,  exclusive  and  adverse.  Indeed  the  counsel  for  the  plain- 
tiff seemed  to  abandon  this  as  untenable,  and  to  rely  on  the  3rd  and 
4th  errors  assigned,  which  are  in  fact  the  same,  and  form  but  one 
point.  Ought  the  court  to  have  directed  the  jury  from  the  enjoy- 
ment of  this  way  and  landing,  proved  by  defendant,  to  have  pre- 
sumed a  grant  of  any  easement  ?  And  if  the  plaintiff  in  error  had 
given  any  evidence  to  show  a  continued  exclusive  possession  and 
enjoyment,  with  the  acquiescence  of  the  owner  of  the  inheritance, 
for  21  years,  by  way  of  analogy  as  to  the  time  of  the  statute  of 
limitations,  the  court  should  have  left  this  to  the  jury  as  presump- 
tive evidence  of  a  right,  by  grant  or  otherwise  ;  and  unless  contra- 
dicted or  explained,  the  jury  ought  to  believe  it.  Length  of  time 
cannot  be  said  to  be  an  absolute  bar  like  a  statute  of  limitations,  but 
is  only  a  presumptive  bar  to  be  left  to  a  jury.  This  presumption 
of  grant  from  long  usage,  is  for  the  sake  of  peace  and  furtherance 
of  justice.  It  cannot  be  supposed,  where  there  has  been  a  long 
exercise  and  possession  of  such  right,  that  any  person  would  suffer 
his  neighbour  to  obstruct  the  lights  of  his  windows,  or  render  his 
house  uncomfortable,  or  to  use  a  way  for  so  long  a  time  with  carts 
and  carriages,  unless  there  had  been  some  agreement  between  the 
parties  to  that  effect :  but  this  principle  must  always  be  taken  with 
this  qualification,  that  the  possession  from  which  a  party  would  pre- 
sume a  grant  or  easement,  must  be  with  the  knowledge  of  the  per- 
son seized  of  the  inheritance,  2  Saund.  175.  The  evidence  in  this 
case  is  very  far  from  proving  any  such  possession.  It  does  not 
possess  one  ingredient  of  it.  It  was  not  a  continued,  successive, 
uninterrupted  enjoyment  by  Sumral  and  those  claiming  under 
him.  He  was  the  agent  of  Allison  the  owner  for  some  time  ;  his 
tenant  for  some  time  ;  other  tenants  of  Allison's  occasionally  used 
VOL.  ix.  K 


34  SUPREME  COURT  [Pittsburgh, 

(Cooper  and  another  v.  Smith.) 

the  ferry,  and  there  was  at  other  times  contention  respecting  it. 
Besides,  Robb  set  up  a  claim  directly  adverse,  had  a  survey  made 
cutting  off  a  small  strip,  under  the  idle  pretence  that  Jlllisoii's  sur- 
vey did  not  come  down  to  the  water.  That  confining  him  to  his 
distances  on  his  survey,  and  to  his  marked  lines,  there  would  be  a 
vacant  spot  by  the  water  side.  The  surveyor  marks  the  trees  on  the 
bank,  but  includes  all  to  the  water,  and  so  represents  and  returns 
it.  The  river  here  is  the  boundary  of  Allison1  s  survey.  The  pa- 
tent describes  this  as  his  boundary  ;  the  right  of  Allison  is  acknow- 
ledged by  all,  and  it  is  admitted  by  the  special  defence.  Nor  is 
there  a  spark  of  evidence  to  be  left  to  a  jury  to  presume  a  grant, 
either  to  Sumral  or  any  claiming  under  him  ;  but  it  excludes  all 
presumption  of  agreement,  or  grant  from  Jillison  the  owner:  he 
never  witnessed  these  intrusions,  he  never  saw  the  land,  he  never 
acquiesced  in  these  usurpations.  Every  act  of  SumraVs  was  a 
trespass ;  it  was  contrary  to  the  provisions  of  the  act,  vesting  in  him 
the  right  of  ferry.  The  repetition  of  the  trespass  did  not  give  a 
possession  protected  by  the  act  of  limitation.  It  might  as  well  be 
contended  that  a  man  entering  into  the  woods  of  another,  and  cut- 
ting and  carrying  away  his  timber,  and  continuing  the  practices 
for  21  years  or  more,  thereby  acquired  a  right  to  the  land  by  these 
vagrant  acts  of  repeated  trespass.  The  court  are  therefore  clearly 
of  opinion,  that  the  plaintiff  has  failed  in  supporting  any  of  the  er- 
rors assigned.  It  might  have  been  sufficient  to  have  decided  this 
case  on  one  ground,  that  if  the  plaintiff  in  error  had  a  right  of 
easement,  the  only  right  which  he  claims,  still  the  plaintiff  below 
had  the  right  to  the  soil  and  the  possession  ;  but  they  have  con- 
sidered it  proper  to  give  an  opinion  on  all  the  errors  assigned. 

Judgment  affirmed. 


END  OF  SEPTEMBER  TERM,  PITTSBURGH,   1822. 


CASES 


IN  THE 


SUPREME  COURT  OE  PENNSYLVANIA. 

l 

SOUTHERN  DISTRICT— OCTOBER  TERM,  1812. 


[Chambersburgii,  Oct.  21,  1822,] 

Case  of  the  road  leading  from  the  house  of  MATTHEW  MILLER. 

CERTIORARI. 

The  description  of  a  road  prayed  for  by  petition  as  beginning  at  a  dwelling  house, 
which  is  known,  and  ending  at  a  public  road,  is  sufficiently  certain. 

A  road  from  the  plantation  or  dwelling  house  of  a  petitioner,  to  or  from  the  public 
highway,  or  any  place  of  public  resort,  as  described  in  the  1 7th  section  of  the  act 
of  6th  April,  1802,  is  a  private  road,  to  be  laid  out,  &c,  in  the  manner  therein 
prescribed,  and  there  is  no  authority  in  any  court  of  Quarter  Sessions,  to  have  it 
laid  out  as  a  public  road. 

Certiorari  to  the  Court  of  Quarter  Sessions  of  the  county  of 
Cumberland,  by  which  was  brought  up  the  order  of  that  court,  con- 
firming the  proceedings  to  lay  out  a  road,  leading  from  the  house 
of  Matthew  Miller,  to  the  public  road  leading  from  Carlisle  to  Har- 
risburg,  commonly  called  the  "  Trindle  Spring  Road"  in  the  county 
of  Cumberland. 

A  petition  was  presented  to  the  court  below,  at  January  ses- 
sions, 1820,  by  four  persons,  inhabitants  of  Middleton  and  Carlisle 
townships,  in  said  county,  praying  the  court  to  appoint  proper  per- 
sons to  view,  and  lay  out,  a  private  road,  "  to  lead  from  the  dwell- 
ing house  of  Matthew  Miller,  now  in  the  occupancy  of  Isaac 
Vanorsdale,  in  South  Middleton  township,  to  the  public  road  leading 
from  Carlisle  to  Harrisburg,  commonly  called  the  Trindle  Spring 
Road.''''  The  court  appointed  six  viewers,  five  of  whom,  (the  other 
not  attending,)  reported,  that  they  adjudged  the  same  necessary  for 
a  public  road,  as  represented  by  a  draught  annexed,  and  agreeably 
to  certain  courses  and  distances  mentioned  in  the  report.     Excep- 


36  SUPREME  COURT  [Chamber  sburg, 

(Case  of  the  road  leading  from  the  house  of  Matthew  Miller.) 

tions  were  filed  to  this  report  in  November,  1820,  and  at  January 
sessions,  1821,  on  the  petition  of  certain  of  the  inhabitants  of  South 
Middleton  township,  for  a  review,  the  court  appointed  six  reviewers, 
who  reported  that  there  was  no  occasion  for  the  road.  This  report 
was  set  aside  by  the  court,  in  August  following,  and  six  re-reviewers 
were  appointed,  who  reported,  that  the  road  was  necessary  for  a 
public  road,  and  returned  its  courses  and  distances,  and  a  draught. 
This  report  the  court,  after  argument,  confirmed,  and  ordered  the 
road  to  be  opened.  With  the  above  proceedings  was  returned  an 
affidavit  by  Matthew  Miller,  the  owner  of  the  house  above  men- 
tioned, (filed  in  the  court  below,)  that  he  had  no  notice  of  the  time 
when  the  re-review  was  to  be  had,  nor  did  he  know  of  it  till  he  acci- 
dentally saw  the  re-reviewers  on  the  ground,  when  they  had  nearly 
completed  their  business.  Miller  was  not  one  of  the  subscribers  to 
the  petition  for  the  road. 

The  following  exceptions  were  taken,  on  behalf  of  Matthew 
Miller,  and  several  inhabitants  of  the  township  in  which  the  road 
was  situated. 

1.  That  the  petition  is  for  a  private  road,  and  the  petitioners 
have  no  interest,  nor  do  they  represent  any  person  having  interest 
in  the  dwelling  house  from  which  the  road  is  prayed  for. 

2.  There  is  no  point  specified  in  the  petition,  at  which  the  road 
prayed  for  should  intersect  the  public  road  and  terminate. 

3.  No  notice  was  given  of  the  review  to  the  owner  of  the  dwell- 
ing house,  from  which  the  road  proceeds. 

4.  No  public  road  could  be  laid  out  between  the  points  prayed 
for,  and  stated  in  the  petition. 

Metzgar  and  Carothers  against  the  road. 

Mahon  and  Williamson,  contra. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.J.  Certain  persons"  petitioned  the  Court  of  Quar- 
ter Sessions  of  Cumberland  county,  for  a  private  road,  leading 
from  the  dwelling  house  of  Matthew  Miller,  (then  occupied  by 
Isaac  Vanorsdale,)  to  the  public  road  leading  from  Carlisle  to 
Harrisburg,  commonly  called  the  "  Trindle  Spring  Road."  After 
several  views  and  reviews,  a  public  road  was  laid  out  and  confirmed 
by  the  court.  The  proceedings  have  been  brought  before  us  by 
certiorari;  and  are  now  opposed  by  Matthew  Miller,  the  proprietor 
of  the  dwelling  house,  and  adjoining  land  mentioned  in  the  peti- 
tion, (who  was  not  one  of  the  petitioners,)  and  also  by  sundry 
inhabitants  of  the  township  in  which  the  road  is  situated.  The  fol- 
lowing objections  were  made  to  the  proceedings: — 1.  That  the 
petitioners  had  no  interest  in  the  dwelling  house  from  which  the 
road  was  to  run.  2.  That  there  was  no  point,  specified  in  the 
petition,  at  which  the  private  road  was  to  intersect  the  Trindle 
Spring  Road.  3.  That  on  a  petition  for  a  private  road,  it  was  not 
lawful  to  lay  out  a  public  road. 


Oct  1822.]  OF  PENNSYLVANIA.  37 

(Case  of  the  road  leading  from  the  house  of  Matthew  Miller.) 

The  second  objection  was  very  properly  relinquished,  because  it 
was  decided  by  this  court,   in  the   case  of  Kyle's  road,  4  Yeates, 
514,  that  the   description  of  the  road  prayed  for  is  sufficiently  cer- 
tain, beginning  at  a  dwelling  house  which  is  known,  and  ending  at 
a  public  road.     The  point  at  which  the  public  road  was  to  be  in- 
tersected, was  left  to  the  judgment  of  the  viewers,  who   would  lay 
out  the  private  road  and  report  it  to  the  court.     As  to  the  1st  ob- 
jection, "  that  the  petitioners  had  no  interest,"  it  would  not  be  easy 
for  this  court  to  decide  how  the  fact  is,  and  it  is  not  very  material 
as  the  cause  may  be  decided  on  the  3d  objection.     Private  roads 
are  to  be  paid  for  by  the  petitioners,  and  opened  and  kept  in  repair 
at  their  expense.     It  is  therefore  a  circumstance  which  strikes  us  at 
first  blush  as  very  extraordinary,  that  when  a  private  road  is  pray- 
ed for,  the  petitioners  should  not  be  indulged  in  their  request  to 
pay  for  it,  and  keep  it   in  repair,  but  all  this  charge   should  be 
thrown  on  the  public.     In   the  case  before  the  court,  I  have  heard 
no  good  reason  assigned  for  a  public  road.     All  that  was  wanted 
was  a  passage  from  the  house  of  Matthew  Miller,  to  the  public 
road,  a  distance  of  a  few  perches.     And  when  it  is  considered,  that 
Miller  himself  objects  to  a  public  road,  as  extremely  inconvenient, 
in  consequence  of  the  right  which  it  gives  to  every  man  to  pass 
over  his  property,  up  to  the  very  door  of  his  dwelling  house,  it  is 
difficult  to  conjecture  on  what  principle  a  public  road  was  granted. 
The  right  of  the  Courts  of  Quarter  Sessions  to  lay  out  roads,  be- 
pends  upon  statute ;  for  at  common  law  they  have  no   such  autho- 
rity.    We  have  an  act  on  that  subject,  passed  the  6th  April,  1802, 
Purd.  Dig.  586.  on  which  this  case  depends.     By  the  1st  section, 
the  court  is  authorized,  on  a  petition  for  a  public  or  private  road, 
to  appoint  a  certain  number  of  persons  who  are  to  view  the  ground, 
and  if  they  are  of  opinion  that  a  road  is  necessary,  they  are  to  lay 
it  out,  and  make  report  of  their  proceedings  to  the  court,  with  a  plot 
of  the  road;  and  they  are  to  give  their  opinion,  whether  a  public  or 
private  road  is  necessary.     If  the  court  approves  of  the  report,  the 
road  is  to  be  established  and  recorded.     From  the  general  expres- 
sions of  this  section,  it  would  appear,  that  in  case  of  all  petitions, 
whether  for  public  or  private  roads,  the  viewers  are  to  judge,  whe- 
ther the  road  should  be  public  or  private.     But  in  the  17th  section, 
the  case  of  private  roads  is  particularly  mentioned,  and  in  order  to 
form  an  opinion  of  the  meaning  of  the  law,  the  1st  and  17th  sec- 
tions are  to  be  compared.     The  17th  section  enacts,  that  on  the  pe- 
tition of  any  person   or  persons,   for   a  road,  from  the  plantation 
or  dwelling  house  of  such  person  or  persons,  to  or  from  the  pub- 
lic highway,  or  to  any  place  of  necessary  public  resort,  the  court 
is  to  direct  a  view,   and  report,  in  the  manner  prescribed  in  the 
1st  section,  and  if  such  road  be  found  necessary,  the   court  shall 
direct  of  what  width  it  shall  be,  so  as  the  name  shall  not  exceed  25 
feet,  and  such  road  shall  be  recorded.     It  is  to  be  opened  and  kept 
in  repair,  at  the  expense  of  the  petitioners  and  of  those  who  make 


38 


SUPREME  COURT 


[Chambersburgy 


(Case  of  the  road  leading  from  Ihe  house  of  Matthew  Miller.) 


use  of  it,  and  if  it  is  carried  through  any  man's  ground,  the  damage 
thereby  occasioned  is  to  be  valued,  and  paid  by  the  petitioners  and 
those  who  make  use  of  it,  in  passing  to  and  from  their  dwellings. 
According  to  the  17th  section  then,  when  a  road  is  petitioned  for, 
from  a  man's  dwelling  house  to  a  public  road,  all  that  the  viewers 
ought  to  consider,  is,  whether  it  be  necessary,  and  if  it  be,  it  is  to 
be  paid  for,  opened,  and  kept  in  repair,  at  the  expense  of  the  peti- 
tioners, &c.  Taking  the  1st  and  17th  sections  together,  we  may 
conclude,  1st,  that  whenever  a  public  road  is  petitioned  for,  the 
viewers  are  to  give  their  opinion  whether  it  should  be  public  or 
private.  2d,  When  a  road  is  petitioned  for,  from  a  man's  dwelling 
house  to  a  public  road,  this  is  in  nature  of  a  private  road,  and  the 
viewers  are  not  to  express  any  opinion  on  that  subject.  There  may 
be  cases  in  which  a  few  persons  may  wish  for  a  road  from  one 
public  road  to  another,  or  from  one  place  to  another,  in  which  the 
public  has  not  much  concern,  and  in  such  cases,  it  is  very  proper 
that  the  viewers  should  give  their  opinion  whether  the  road  should 
be  public  or  private.  But  when  a  passage  is  asked,  from  the  land  of 
an  individual  to  a  public  road,  it  is  scarce  possible  that  the  public 
should  have  any  interest  in  it,  and  it  would  therefore  be  unjust, 
that  it  should  be  paid  for,  opened,  or  kept  in  repair  at  the  public 
expense.  This  subject  was  brought  before  the  court,  in  the  case 
of  Kyle's  road,  reported  in  4  Yeates,  515.  The  point  now  under 
consideration  was  not  expressly  decided.  But  Judge  Smith  ex- 
pressed his  opinion,  that  the  viewers,  on  a  petition  like  the  pre- 
sent, had  no  right  to  return  a  public  road,  and  a  majority  of  the 
court  appeared  to  incline  to  the  same  sentiment.  It  is  a  matter  in 
which  the  public  has  a  considerable  interest.  For  the  people  may 
be  burdened  to  an  unknown  extent,  if  they  can  be  made  charge- 
able with  roads  laid  out  solely  for  the  accommodation  of  private 
persons.  Upon  an  attentive  consideration  of  the  whole  act  of  as- 
sembly, I  am  of  opinion,  that  a  road  from  the  plantation  or  dwell- 
ing house  of  the  petitioner,  to,  or  from,  the  public  highway,  or  to 
any  place  of  public  resort,  as  described  in  the  17th  section,  is  a 
private  road,  to  be  laid  out,  paid  for,  and  kept  in  repair  at  the  ex- 
pense of  the  petitioners,  &c.  in  the  manner  prescribed  in  that  sec- 
tion, and  that  there  is  no  authority  in  any  court  of  Quarter  Sessions, 
to  have  it  laid  out  as  a  public  road.  The  proceedings  in  the  case 
now  before  us,  are  therefore  to  be  quashed. 

Proceedings  quashed. 


Oct.  1822.]  OF  PENNSYLVANIA.  39 

[Chambersburg,  Oct.  21,  1822.] 

WILSON  against  STONER. 

IN  ERROR. 

A  survey  is  not  evidence  without  showing'  an  authority  to  make  it,  or  proving  that 
such  authority  existed  and  was  afterwards  lost. 

Possession  upwards  of  30  years,  under  a  survey  found  in  the  hand  writing  of  an 
assistant  deputy  surveyor,  indorsed  "  copied  for  return,"  with  a  memorandum 
by  him,  that  there  was  an  authority  to  make  it,  the  lines  of  which  survey  are 
marked  on  the  ground,  is  not  a  sufficient  foundation  to  presume  a  warrant  or 
authority. 

Error  to  the  Court  of  Common  Pleas  of  Franklin  county,  in  an 
ejectment  brought  by  William  Wilson  against  Isaac  Stover,  in 
which  a  verdict  and  judgment  were  rendered  in  favour  of  the  de- 
fendant. 

The  plaintiff  claimed  under  a  warrant  in  his  own  name,  dated  the 
22d  July,  1817,  and  survey  thereon  on  the  4th  September,  1817,  for 
58  acres  and  64  perches  of  land  in  Franklin  county,  returned  and 
accepted  on  the  1st  December,  1817. 

The  defendant  claimed  under  a  survey  of  55  acres  in  the  name 
of  Isaac  Baird,  made  by  Samuel  Lyon,  formerly  assistant  deputy 
surveyor  for  the  district,  and  dated  the  5th  January,  1770.  It  was 
in  the  hand  writing  of  Mr.  Lyon,  and  was  found  in  the  deputy  sur- 
veyor's office.  It  was  indorsed  in  Mr.  Lyon's  hand  writing,  "  copied 
for  return ;"  and  by  a  memorandum  subjoined  to  it,  also  in  Mr. 
Lyon's  hand  writing,  it  purported  to  have  been  made  under  an 
order  for  300  acres ;  but  in  what  name,  or  at  what  time,  did  not 
appear.  No  location  or  order  was  produced.  It  was  admitted,  that 
due  search  had  been  made  for  the  order  mentioned  in  this  memo- 
randum; but  it  could  not  be  found.  The  survey  was  proved  to 
have  been  made  on  the  ground,  and  distinctly  marked.  Isaac  Baird 
conveyed  on  the  3d  November,  1773,  to  Gabriel  Carpenter,  by  a 
deed,  which  recited  the  survey  in  favour  of  Baird  ;  and  on  the  23d 
May,  1807,  Carpenter  conveyed  to  the  defendant,  Stoner.  The 
defendant  proved,  that  upwards  of  30  years  before  the  trial,  and 
since, (a)  (though  the  time  of  the  first  act  was  not  distinctly  stated,) 
Carpenter,  who  lived  on  an  adjoining  tract,  and  after  him  the  de- 
fendant, had  cut  timber  on  the  premises,  for  building,  and  for  rails. 
A  building  was  erected  in  the  year  1790,  after  which  the  land  was 
in  the  possession  of  Carpenter,  and  subsequently  of  the  defendant. 
The  defendant  relied  on  the  above  facts,  and  the  alleged  possession 
of  upwards  of  30  years,  to  support  the  presumption  of  the  existence 
of  an  order  or  location,  on  which  Isaac  Baird's  survey  was  made. 

The  plaintiff  objected  to  the  reading  of  the  survey  and  deeds  in 
evidence ;  but  the  court  admitted  them,  and  sealed  a  bill  of  excep- 
tions. 


(a)  The  date  of  the  trial  of  the  present  suit,  did  not  appear  by  the  papers  in  the 
hands  of  the  reporters. 


40  SUPREME  COURT  [Chambersburg, 

(Wilson  D.  Stoncr.) 

The  plaintiff  requested  the  court  to  charge  the  jury,  that  there 
being  no  evidence  of  any  warrant,  location,  order  of  survey,  or 
office  right,  the  survey  was  entitled  to  no  weight  with  the  jury. 

But  the  court  charged,  that  there  was  nothing  in  the  law  to  pre- 
vent the  jury  from  presuming  the  existence  of  an  authority  to  make 
the  survey,  though  it  could  not  be  produced.  To  support  an  ancient 
possession  of  long  standing,  a  patent,  a  deed,  and  even  an  act  of 
parliament,  have  been  presumed.  They  further  charged  the  jury, 
that  if  they  were  satisfied,  that  a  regular  authority  existed  under 
which  Baud's  survey  was  made,  that  such  survey  was  regularly 
made  upon  the  ground,  and  that  the  surveying  fees  were  paid, 
which  fact,  from  circumstances,  backed  by  a  long  possession  under 
the  survey,  might  also  be  presumed,  then  the  plaintiff  ought  not  to 
recover. 

Crawford,  for  the  plaintiff  in  error.  The  court  below  were 
wrong  in  allowing  the  survey  to  be  read  in  evidence,  without  any 
order  or  authority  being  first  produced,  to  justify  its  being  made. 
No  case  is  to  be  found  in  which  the  courts  have  gone  so  far  as  this  ; 
in  all  of  them  there  has  been  some  evidence  of  an  authority.  In 
Sproul  v.  Plumsted's  lessee,  4  Binn.  189,  sundry  warrants  having 
been  given  in  evidence,  a  survey  was  admitted,  though  it  did  not 
express  by  virtue  of  what  warrant  it  was  made :  it  was  left  to  the 
jury  to  judge,  whether  it  was  made  by  virtue  of  any  warrant.  It 
is,  in  that  case,  distinctly  admitted  by  the  court,  that  if  no  sort  of 
warrant  had  been  shown,  the  survey  ought  to  have  been  rejected. 
Lessee  of  Brown  v.  Long,  1  Yeates,  162,  is  an  authority  to  the 
same  effect.  So  a  survey  adopted  by  the  land  office  is  evidence, 
though  not  made  by  the  regular  officer.  Shields' s  lessee  v.  Buchanan, 
2  Yeates,  219.  But,  till  some  foundation  for  the  act  is  shown,  it 
is  like  a  deed  made  by  a  person  who  has  no  title,  which  is  not 
evidence.  Shields' s  lessee  v.  Buchanan,  1  Binn.  188.  Peters' s 
lessee  v.  Condron,  2  Serg.  Sf  Rawle,  80.  The  memorandum  of 
Samuel  Lyon,  that  there  existed  an  authority  of  some  kind,  had  it 
been  ever  so  precise  and  definite,  was  no  evidence  of  its  existence. 
In  Bonnet's  lessee  v.  Devebaugh,  3  Binn.  175,  the  declarations  of 
Gen.  Armstrong,  that  he  had  made  a  survey  in  1755,  under  an  order 
from  the  proprietaries,  were  rejected  though  he  was  dead,  and  all 
his  official  papers  had  been  accidentally  burnt,  and  the  warrant  of 
acceptance  recited,  that  the  survey  had  been  made  under  such  an 
order.  Yeates,  J.  says,  a  warrant  or  order  of  survey,  some  written 
direction,  or  instructions,  from  the  commissioners  of  property,  or 
some  one  of  them,  became  necessary  to  justify  the  surveyor  general, 
or  his  deputies,  in  locating  land  applied  for.  If  the  original,  or  a 
copy,  cannot  be  produced,  parol  testimony  of  its  loss,  and  contents, 
is  admissible.  The  opinion  of  Brackenridge,  J.  is  to  the  same 
effect,  lb.  190.  The  only  ground,  on  which  such  surveys  could 
have  been  maintained,  is,  that  of  a  custom  or  usage,  which  existed  in 
early  times,  on  payment  of  £o,  and  surveying  fees  :  a  custom  which 


Oct.  1822.]  OF  PENNSYLVANIA.  41 

(Wilson  u.  Stoner.) 

was  recognised  as  valid  in  Wood's  lessee  v.  Galbraith,  2  Yeates, 
306,  in  the  case  of  a  survey  made  in  the  year  1745 ;  but  does  not 
apply  to  a  survey  made  as  late  as  1770.  The  exception,  however, 
proves  the  general  rule,  which  is,  that  the  act  of  an  unauthorized 
deputy  surveyor  is  altogether  void.  Healy  v.  Moul,  5  Serg.  fy 
Rawle,  181. 

The  survey,  therefore,  being  void,  for  want  of  an  authority,  there 
was  no  ground  from  which  an  authority  could  be  legally  presumed. 
The  possession  was  not  ancient,  it  was  but  thirty  years ;  which  is 
not  long  enough  to  presume  a  matter  of  record.  In  the  Mayor  of 
Kingston  v.  Horner,  which  is  the  leading  authority  on  the  subject  of 
presuming  a  charter  or  patent,  the  possession  was  350  years,  and 
there  were  other  circumstances,  Cowp.  102.  The  time  required  to 
presume  a  patent,  or  grant  of  land  from  the  state,  is  a  great  length 
of  time.       1  Phill.  Ev.  119.     2  Hen.  §•  Munf.  370. 

Chambers,  contra.  All  the  exceptions  taken  by  the  plaintiff, 
may  be  reduced  to  one  point,  namely,  whether  the  length  of  time, 
and  other  circumstances  were  not  sufficient  to  justify  the  court  in 
admitting  the  survey,  and  leaving  it  to  the  jury  to  presume  an  au- 
thority in  the  assistant  deputy  surveyor  to  make  it.  The  length  of 
time  within  which  a  charter  or  official  authority  may  be  presumed, 
must  depend  upon  the  particular  circumstances  of  each  case.  In 
questions  of  this  kind,  possession  goes  a  great  way,  and  there  is  no 
particular  time  within  which  a  charter  may  be  presumed.  Mayor 
of  Kingston  v.  Horner,  Cowp.  110. 

The  law  greatly  regards  the  public  safety  and  repose,  and  almost 
any  thing  will  be  presumed  in  favour  of  ancient  possessions.  Pa- 
tents and  grants  are  presumed  after  30  years,  3  Johns.  Cas.  117. 
Garwood  v.  Dennis,  4  Binn.  337.  Lowrey  v.  Gibson,  2  Yeates,  84. 
Slight  circumstances  will  be  taken  hold  of.  In  Garwood  v.  Dennis, 
recitals  in  deeds  were  held  evidence  after  long  possession.  In 
Evans  v.  JYargong,  2  Binn.  55,  a  presumption  was  raised  that  one 
person  was  the  owner  of  a  warrant  issued  in  favour  of  another  from 
attending  and  directing  the  survey,  and  from  other  circumstances. 
In  Galloway  v.  Ogle,  2  Binn.  468,  40  years  were  held  sufficient  to 
create  a  presumption  of  a  conveyance  of  unpatented  land.  In  rela- 
tion to  land  titles  in  Pennsylvania,  there  has  been  much  latitude 
allowed.  In  BelPs  lessee  v.  Levers,  3  Yeates,  25,  the  Chief  Justice 
says,  in  charging  the  jury,  that  the  authority  of  a  deputy  to  make 
surveys,  should  not  be  too  closely  scrutinized,  after  so  great  a  lapse 
of  time  as  27  years.  At  so  early  a  date  as  1763,  it  was  decided  by 
the  Supreme  Court,  that  a  letter  of  James  Steel,  receiver  general, 
and  secretary  of  the  land  office,  was  a  sufficient  authority,  Fot/ier- 
giWs  lessee  v.  Hoover,  1  Dall.  6,  and  in  1774,  the  list  of  first  pur- 
chasers was  held  evidence  of  the  former  existence  of  a  lost  deed, 
Hurst  v.  Deppo,  1  Dall.  20.  The  general  doctrine  as  to  presump- 
tion is  stated  by  the  Chief  Justice  in  Mather  v.  The  Ministers  of 

VOL.  ix.  F 


42  SUPREME  COURT  [Chamber  sburg, 

(Wilson  v.  Stoncr.) 

Trinity  Church,  3  Serg.  fy  Rawle,  510.  "-There  is  no  absolute  time 
required  by  law,  on  which  to  found  this  kind  of  presumption.  Cir- 
cumstances may  require,  in  different  cases,  a  different  length  of 
time,"  and  in  that  case,  a  grant,  or  pre-emption  right  from  the  com- 
monwealth, was  presumed  after  90  years'  possession,  though  no 
trace  of  such  right  was  shown  by  any  writing  or  other  evidence. 
The  doctrine  of  presuming  a  grant  or  right  after  a  lapse  of  time  is, 
by  modern  decisions,  extended  to  every  subject :  to  the  case  of  an 
easement  after  20  years'  possession,  2  Sound.  175,  A.  note  ;  to  a  rent, 
1  Madd.  Ch.  25,  and  payment  of  rent  is  presumed  after  that  period, 
16  Johns.  210  ;  after  14  years'  possession  regular  re-entry  by  the 
landlord  is  presumed,  2  Caines,  382.  In  the  present  case,  the  sur- 
vey was  made  in  the  year  1770,  upwards  of  50  years  before  the 
trial :  and  in  a  deed  dated  the  3d  November,  1773,  the  survey  by 
Lyon  is  recited.  The  survey  itself  was  preserved  for  30  years  in 
the  office  of  the  deputy  surveyor.  There  were  buildings  on  the 
land  30  years  ago  ;  and  it  was  occupied  before  that  period  by  Car- 
penter as  woodland,  and  as  appurtenant  to  his  farm  :  showing  a  pos- 
session by  him  for  39  years. 

Crawford,  in  reply.  The  occupation  in  the  present  case  was 
equivocal:  it  consisted  in  cutting  wood.  The  deed  by  Isaac  Baird 
in  1773,  recites  Lyoii's  survey,  but  not  any  warrant  or  location,  and 
it  is  for  this  purpose  that  some  evidence  is  sought,  and  not  as  to  the 
survey,  which  is  sufficiently  proved. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  Both  of  the  exceptions  relied  on  contain  exactly  the 
same  point — the  effect  of  length  of  time  in  presuming  the  existence 
of  a  location  on  which  the  survey  for  Isaac  Baird,  under  which 
the  defendant  claims,  might  have  been  made.  The  facts  from  which 
the  presumption  is  said  to  arise,  are :  There  has  been  possession  for 
more  than  30  years,  according  to  the  survey  ;  the  memorandum  at 
the  foot  of  which  recites,  that  it  was  made  on  an  order  for  300 
acres,  but  without  mentioning  the  date  of  the  order,  or  the  name  of 
the  owner.  The  survey  is  in  the  hand  writing  of  Samuel  Lyon, 
at  that  time  an  assistant  of  the  deputy  surveyor  of  the  district;  and 
has  indorsed  on  it,  (also  in  the  hand  writing  of  Mr.  Lyon,)  "  copied 
for  return  :" — and  added  to  this  the  paper  is  found  in  the  office  of 
the  deputy  surveyor  of  the  district.  These  circumstances  could  not 
be  received  as  presumptive  evidence  for  the  jury  to  draw  the  con- 
clusion as  matter  of  fact ;  for  if  the  existence  of  the  location  be  ad- 
mitted, some  account  of  its  loss  would  have  to  be  given  before  se- 
condary evidence  of  its  contents  could  be  received  ;  without  which 
the  survey  would  be  inadmissible  for  want  of  a  previous  authority. 
Besides,  there  is  nothing  but  the  assertion  of  the  assistant  deputy ,jo 
show  that  the  making  of  the  survey  was  any  thing  else  than  an  ex- 
tra-official act ;  and  the  assertion  or  declaration  of  a  deputy,  except 


Oct.  1822.]  OF  PENNSYLVANIA.  43 

(Wilson  v.  Stoner.) 

where  it  is  made  in  the  discharge  of  an  official  duty,  and  is  part  of 
the  res  gesta,  as  in  the  case  of  a  receipt  for  fees  given  when  the  fees 
are  paid,  is  not  competent  evidence.  But  before  the  declaration  can 
be  received  as  part  of  an  official  act,  the  act  itself  must  appear  by 
evidence  aliunde  to  have  been  official  ;  for  it  would  be  arguing  in  a 
circle  to  say,  that  Mr.  Lyon's  assertions  are  evidence,  because  he 
acted  by  authority,  and  that  he  did  act  by  authority  is  proved  by 
these  assertions.  Nor  is  the  case  strengthened  by  the  circumstance 
of  Mr.  Lyon  having  been  in  the  employment  of  the  deputy,  and  the 
paper  being  found  in  the  deputy's  office :  I  would  consider  it  to  be 
the  same  if  the  survey  were  in  the  hand  writing  of  the  duputy 
himself.  His  having  seen  and  recognised  the  survey  could  give  it 
no  additional  force  :  it  might  be  otherwise  if  it  were  received  in  the 
land  office.  It  would  be  dangerous  to  consider  every  paper  found 
in  a  deputy's  office  as  official  of  course  ;  whether  it  had  relation 
to  the  execution  of  his  office  or  not.  His  power  is  derivative,  and 
unless  something  appear  to  raise  a  presumption  that  he  acted  by  au- 
thority, his  act  will  not  bear  an  official  stamp  merely  because  he 
filed  the  evidence  of  it  with  his  official  papers.  As  presumptive 
evidence  to  satisfy  the  jury  of  the  truth  of  the  facts,  therefore,  the 
paper  was  in  every  view  inadmissible. 

But  it  is  contended  that  be  this  as  it  may, 'possession  having 
accompanied  the  survey  for  something  more  than  30  years,  is  suffi- 
cient to  raise  a  legal  presumption  of  an  authority  on  which  it  may 
rightfully  have  been  made.  Presumptions  from  length  of  time  are 
those  which  the  law  makes  without  regard  to  what  may  have  been 
the  actual  state  of  the  fact.  They  are  conclusions  of  law,  not 
of  fact ;  and  neither  the  court  nor  the  jury  is  supposed  to 
believe  what  they  take  to  be  conclusively  established  as  true. 
The  particular  circumstances  of  possession  and  length  of  time 
are  to  be  determined  by  the  jury ;  but  the  inference  from  them  is 
for  the. court.  This  principle  of  decision  is  had  recourse  to  from  ne- 
cessity, because,  from  the  remoteness  of  the  period  of  the  supposed 
transaction  there  is  no  means  of  ascertaining  the  actual  state  of  the 
fact  ;  and  it  therefore  holds  in  judging  only  of  things  which  belong 
to  antiquity.  In  England  a  grant  may  be  presumed  against  the 
Crown  ;  but  less  readily  than  against  an  individual.  In  this  state, 
from  the  very  nature  of  our  land  titles,  the  reason  of  this  difference 
holds  with  additional  force.  In  other  countries,  holding  by  per- 
mission of  the  state  is  a  rare  circumstance :  with  us  holding  by 
permission  under  an  implied  contract  for  a  conveyance  to  be  exe- 
cuted at  an  indefinite  period  subsequently,  is  a  common  origin 
of  title.  This  remark  is  applicable  in  a  greater  or  less  degree 
to  every  part  of  the  state:  but  it  is  obvious  that  to  raise  this  kind 
of  presumption  a  greater  length  of  time  will  be  required,  where 
the  population  is  sparse,  and  the  possession  a  matter  of  little  noto- 
riety, than  where  the  population  is  dense,  and  possession  of 
a  nature  to  arrest  the  general  attention.     In  Mather  v.  The  Minis* 


44  SUPREME  COURT  [Chamber sburg, 

(Wilson  v.  Stoncr.) 

fers  of  Trinity  Church,  the  land  which  was  the  subject  of  the 
presumed  grant,  lay  in  the  neighbourhood  of  Philadelphia.  The 
oldest  and  most  thickly  inhabited  part  of  the  state  ;  and  the  occu- 
pancy of  it  by  the  erection  of  a  church  on  it,  in  which  divine  ser- 
vice was  regularly  celebrated,  and  by  vfsing  a  part  of  it  as  a  ceme- 
try,  was  of  a  nature  so  notorious  as  to  preclude  all  possibility  of  its 
having  been  unknown  to  the  proprietary  officers,  or  to  the  govern- 
ment, after  the  proprietary  estates  "were  assumed  by  the  common- 
wealth. Under  these  circumstances  it  was  held  that  a  grant  ought 
to  be  presumed  after  90  years.  At  the  time,  too,  when  this  pos- 
session commenced,  there  was  scarcely  any  thing  like  method  in 
the  issuing  of  rights  to  land  :  after  the  application  system  was  intro- 
duced, the  business  of  the  land  office  was  conducted  with  regularity, 
and  the  locations  were  duly  registered  in  the  proper  office.  To  this 
may  be  added  that  the  location  in  question,  if  in  fact  one  ever  ex- 
isted, was  for  land  in  a  part  of  the  state  comparatively  new  and  thinly 
inhabited,  where  taking  possession  without  a  grant,  was  a  common 
mode  of  laying  a  foundation  for  a  title  ;  and  that  the  occupancy  in  this 
particular  instance  was  attended  with  no  peculiar  circumstances  of 
notoriety.  It  is  impossible  to  lay  down  any  rule  on  the  subject  of 
presumptions,  which  could  be  safely  applied  to  any  thing  like  a  ma- 
jority of  the  cases  that  may  arise,  these  must  be  judged  of  from  their 
particular  circumstances.  As  a  standard  for  general  reference,  the 
ordinary  period  of  human  existence,  might  perhaps  be  found  more 
convenient  in  practice,  and  thought  more  consistent  with  the  reason 
of  the  thing  than  any  other  that  could  be  proposed  ;  for  while  a  mat- 
ter may  be  susceptible  of  proof  by  living  witnesses,  it  cannot  be 
classed  with  the  things  of  antiquity.  But  this  is  thrown  out  merely 
by  way  of  suggestion.  We  establish  no  general  rule  as  to  presump- 
tions against  the  commonwealth  :  much  less  do  we  pretend  to  deter- 
mine what  would  be  a  reasonable  period  as  against  an  individual. 
We  are  of  opinion  the  period  of  30  years  was  insufficient  to  raise  a 
presumption  of  the  existence  of  a  location,  or  any  other  authority,  on 
which  Bawd's  survey  might  have  been  made  ;  and  consequently 
that  the  survey  ought  not  to  have  gone  to  the  jury  :  and  that  even 
if  it  might  rightly  have  been  admitted,  instructing  the  jury  that  there 
was  nothing  in  the  way  of  a  presumption  in  favour  of  the  existence 
of  a  location,  was  error. 

Judgment  reversed  and  a  venire  de  novo  awarded,. 


Oct.  1822.]  OF  PENNSYLVANIA.  45 


[Chambersburg,  Oct.  21,  1822.] 
KNOX  against  RINEHART. 

IN  ERROR. 

In  covenant  on  an  agreement  to  make  the  plaintiff  a  title  on  a  day  certain,  in  consi- 
deration of  which  he  was  to  give  bonds,  if  he  aver  a  readiness  to  perform,  and  the 
defendant  puts  in  issue,  by  his  plea,  the  plaintiff's  readiness  to  perform,  it  is  suffi- 
cient on  the  trial,  if  the  plaintiff  show  that  the  defendant  had  no  title  on  the  day : 
he  is  not  bound  to  show  performance  or  tender. 

Error  to  the  Court  of  Common  Pleas  of  the  county  of  Cumber- 
land. 

Covenant  in  the  court  below,  by  Barnliart  Rinehart  against  Joseph 
Knox.  The  first  count  of  the  declaration  set  forth  articles  of  agree- 
ment between  the  parties,  dated  29th  Dec.  1808,  by  which  it  was 
agreed,  that  the  said  Joseph  should  and  would,  on  the  first  of  April 
ensuing,  by  a  good  and  sufficient  title  with  a  general  warranty,  (quit 
rents  excepted,)  well  and  sufficiently  grant,  convey,  and  assure 
unto  the  said  Rinehart,  his  heirs,  and  assigns,  a  certain  tenement 
and  lot  of  ground  in  Carlisle;  in  consideration  whereof,  the  said 
Rinehart  covenanted,  that  he  should  and  would,  well  and  truly 
pay,  or  cause  to  be  paid,  to  the  said  Knox,  =£900,  in  manner 
following,  viz.  100  dollars  in  hand;  900  dollars  on  the  1st  April, 
next  ensuing,  and  the  residue  in  four  equal  annual  payments  from 
the  said  day ;  and  that  he  would  give  security  for  the  instalments. 
Breach,  that  though  the  said  Rinehart,  from  the  time  of  the  making 
of  the  said  agreement,  hath  always,  hitherto,  been  ready  to  perform 
all  and  singular  those  things  in  the  same  agreement  contained, 
which,  on  his  part,  were  to  be  performed,  according  to  the  true 
intent  and  meaning  thereof,  yet  the  said  Knox  had  not  conveyed 
the  said  tenement  and  lot  of  ground,  &c.  though  requested,  on  the 
said  first  day  of  April,  1809,  &c.  The  second  count  stated,  that 
the  defendant  had  not  good  right,  power,  or  lawful  authority,  to 
convey  the  premises  to  the  plaintiff.  The  defendant  pleaded  cove- 
nants performed,  with  leave  to  give  the  special  matters  in  evidence, 
absque  hoc,  &c.  and  non  inf regit  conventions. 

On  the  trial,  the  articles  of  agreement  as  set  forth  in  the  declara- 
tion were  proved,  and  it  appeared,  that  the  plaintiff  had  paid  100 
dollars  on  the  execution  of  the  articles,  and  on  the  first  of  April, 
1809,  tendered  900  dollars  to  the  defendant,  and  demanded  a  deed. 
The  defendant,  however,  did  not  execute  any  deed,  stating,  that  he 
had  not  then  the  title.  It  appeared,  that  in  November,  1809,  three 
months  after  this  suit  was  brought,  the  defendant  acquired  the  legal 
title  to  the  premises. 

In  answer  to  a  question  put  by  the  defendant,  the  court  charged 
the  jury,  that  it  was  not  incumbent  on  the  plaintiff,  under  the  cir- 
cumstances of  the  case,  to  have  tendered  bonds  with  security,  for 
the  instalments,  prior  to  the  commencement  of  this  suit.     The  de- 


46  SUPREME  COURT  [Chambersburg, 

(Knox  v.  Rinehart.) 

fendant's  want  of  title,  and  his  acknowledgment  of  this,  on  the  ten- 
der of  the  900  dollars,  absolved  the  plaintiff'  from  the  necessity  of 
tendering  bonds. 

The  jury  gave  a  verdict  for  Rinehart,  the  plaintiff  below,  for  the 
100  dollars  paid  and  interest,  and  judgment  was  rendered  thereon. 

Error  was  assigned  in  the  charge  of  the  court,  and 

Carothers,  for  the  plaintiff  in  error,  contended,  that  the  plaintiff' 
was  not  entitled  to  recover,  without  showing,  that  he  did  every  thing 
which  he  had  covenanted  to  do.  He  ought,  therefore,  to  have 
shown,  a  tender  of  bonds  for  the  instalments  of  the  purchase  mo- 
ney, as  well  as  of  the  900  dollars.  The  payment  and  security  of 
the  purchase  money  are  conditions  precedent;  and  the  plaintiff 
must  show,  that  he  did  all  in  his  power  towards  performance  of  the 
conditions.  He  avers  in  the  declaration,  that  he  was  ready  to  per- 
form, and  this  averment  is  traversed  by  the  plea.  He  cited  2 
Powell  on  Cont.  19.     Zerger  v.  Sailor,  6  Binn.  24. 

Mahon  and  Melzgar,  contra,  insisted,  that  the  covenants  were 
independent.  The  conveyance  was  first  to  be  executed,  and  after- 
wards, on  the  same  day,  the  purchase  money  was  to  be  secured. 
The  plaintiff,  therefore,  avers,  not  that  he  had  performed  or  ten- 
dered, but  that  he  was  ready:  he  is  not  bound  to  show  performance. 
They  cited,  1  Esp.  JV.  P.  135.  2  Johns.  272.  Wilcox  v.  Ten 
Eyck,  5  Johns.  78.     8  Johns.  257.     1  Sound.  320.     15  Johns.  303. 

Carothers,  in  reply,  observed,  that  if  it  were  true,  that  the  cove- 
nants were  independent,  Knox  might  recover  the  purchase  money, 
although  he  could  not  make  a  title. 


*b* 


The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  It  is  unnecessary  to  decide,  whether  a  tender  of 
bonds  according  to  the  plaintiff's  covenant,  was  a  condition  pre- 
cedent to  bringing  suit :  the  affirmative  of  that  question  seems  to  be 
conceded  on  the  pleadings  ;  and  for  the  purpose  of  the  argument  I 
shall  consider  the  covenants  as  dependent.  The  plaintiff  averred, 
that  he  had  always  been  "  ready  to  perform  all  and  singular  those 
things  in  the  same  agreement  contained,  which  on  his  part  were  to 
be  performed,  according  to  the  true  intent  and  meaning  thereof;" 
but  without  averring  actual  performance  or  a  tender,  or  setting  out, 
as  he  ought  to  have  done,  the  circumstance  on  which  he  relied  at  the 
trial  as  a  valid  excuse  for  the  want  of  either,  and  which  was  in  fact 
so — the  conceded  inability  of  the  defendant  to  convey  an  unim- 
peachable title  at  the  time  stipulated :  for  without  showing  some- 
thing to  excuse  actual  performance  or  a  tender,  an  averment  of 
mere  readiness  and  willingness  is  insufficient  on  demurrer,  or  in 
error,  where  the  judgment  is  by  default.  The  defendant  pleaded 
covenants  performed,  and  non  infregit  conventiones,  with  a  spe- 
cial traverse  of  the  plaintiff's  averment.  Now  all  that  was  put  in 
issue,  by  this,  was  the  plaintiff's  readiness:  not  actual  performance 


Oct.  1822.]  OF  PENNSYLVANIA.  47 

(Knox  v.  Rinehart.) 

on  his  part,  or  a  tender  of  performance.  Proof  of  the  facts,  required 
by  the  defendant,  would  therefore  not  have  been  pertinent.  Sup- 
pose the  matter  of  excuse  had  been  pleaded  properly — it  will  not 
be  contended,  the  plaintiff  would  still  have  to  prove  performance  or 
a'  tender  ;  and  if  it  be  pleaded  defectively,  that  will  not  change  the 
nature  of  the  proof:  the  plaintiff  will  have  to  prove  the  matter  of 
excuse,  just  as  if  it  were  well  pleaded  ;  and  it  is  precisely  for  this 
reason  a  defective  averment  of  this  sort,  is  held  good  after  verdict. 
I  can  therefore  see  no  error  in  the  direction  to  the  jury. 

Judgment  affirmed. 


[Chambersburg,  Oct,  21,  1822.] 

PATTON  and  others  against  GOLDSBOROUGH. 

IN  ERROR. 

Parol  evidence  of  the  declarations  of  the  grantor  is  admissible,  to  prove  the  identity 
of  a  lot  referred  to  in  a  deed  by  him,  conveying  certain  "lots  in  the  town  of  H. 
marked  on  the'recorded  plan  of  the  said  town  ;"  notice  having  been  given  to  one  of  his 
executors,  a  defendant  in  the  suit,  and  he  having  sworn  that  he  never  saw  any  such 
recorded  plan,  and  the  records  of  the  proper  county  having  been  diligently  searched, 
without  finding  any  recorded  plan. 

Where  three  executors  were  defendants,  who  had  been  notified  on  a  former  trial  between 
the  parties,  to  produce  a  paper,  and  on  the  present  trial  one  of  them  had  been  noti. 
tied,  who  swore,  that  he  had  made  inquiry  of  the  other  members  of  the  family,  and 
diligent  search  had  been  made,  and  the  paper,  could  not  be  found,  and  the  deed 
of  the  testator,  under  which  the  plaintiff  claimed,  referred  to  the  paper,  the  notice 
was  held  sufficient. 

Confessions  by  a  grantor,  that  he  had  conveyed  a  certain  lot,  are  evidence  against 
him  and  his  executors,  of  the  identity  of  the  lot  referred  to  in  the  deed  ;  but  evidence 
of  declarations  or  acts  of  such  grantor,  subsequently  to  his  deed,  is  not  admissible 
to  defeat  the  grant,  by  showing  that  it  was  not  the  lot  referred  to. 

Where  both  plaintiff  and  defendant  derive  title  from  the  same  person,  who  had  been 
seised  of  the  premises,  it  is  not  necessary  that  the  plaintiff  should  show  a  title  out 
of  the  commonwealth. 

Error  to  the  Court  of  Common  Pleas  of  Huntingdon  county  in 
an  ejectment  brought  by  William  Goldsborough  against  William 
Hatton,  and  Richard  Smith,  Charles  Smith,  and  Benjamin  R.  Mor- 
gan, executors  of  Dr.  William  Smith,  deceased,  tried  before  a 
special  court  held  by  Reed,  president,  and  the  associate  Justices 
of  the  Court  of  Common  Pleas  of  Huntingdon  county,  under  the 
act  of  assembly  providing  for  holding  special  courts.  A  verdict 
and  judgment  passed  for  the  plaintiff  below. 

The  ejectment  was  brought  to  recover  a  house  and  lot  in  the 
town  of  Huntingdon  marked  No.  11  in  the  town  plot,  which  had 
formerly,  among  others,  been  the  property  of  Dr.  William  Smith, 
under  whom  the  plaintiff,  who  was  his  grandson,  and  also  the  de- 
fendants claimed.  On  the  15th  Mai/,  1783,  Dr.  Smith  executed 
a  deed  to  his  daughter,  IVilliamina  Elizabeth  Smith,  the  plain- 
tiff's   mother,  granting  to   her,  among  other  things,   "  four  lots, 


48  SUPREME  COURT  [Chambersburg, 

(Patton  and  others  v.  Goldsborough.) 

in  the  town  of  Huntingdon,  in  the  county  of  Bedford,  marked  on 
the  recorded  plan  of  the  said  town  with  the  name  of  the  said  Wil- 
liamina  Elizabeth  Smith .-"  and  the  main  question  between  the  par- 
ties was,  whether  lot  No.  11,  was  one  of  those  embraced  in  this 
deed.  The  present  county  of  Huntingdon  composed  in  the  year 
1783,  part  of  the  county  of  Bedford. 

The  plaintiff' gave  notice  to  Richard  Smith,  one  of  the  defendants, 
who  resided  in  the  town  of  Huntingdon,  to  produce,  on  the  trial, 
the  town  plan  referred  to  in  his  father's  deed,  and  proved,  that 
after  a  diligent  search  among  the  records  of  Bedford  county,  no 
plan  of  the  town  of  Huntingdon  was  to  be  found  of  so  early  a  date 
as  the  year  1783.  A  plan  was  produced  on  the  trial  by  Richard 
Smith,  which  had  been  recorded  in  the  year  1795,  and  also,  several 
other  plans  not  recorded ;  but  he  declared,  that  he  never  saw  such 
a  plan  as  that  which  was  mentioned  in  his  father's  deed  to  his  sis- 
ter Williamina,  nor  could  he  find  any  record  of  it.  The  plaintiff 
then  offered  parol  evidence,  of  repeated  declarations  by  Dr.  Smith, 
both  before  and  after  the  building  of  the  stone  house  on  the  pre- 
mises, which  he  erected  some  time  after  the  year  1790,  "  that  the 
lot  for  which  the  ejectment  was  brought,  being  distinguished  by 
the  number  11,  on  the  recorded  plan  produced  by  the  said  Richard 
Smith,  was  one  of  the  four  lots  conveyed  to  his  daughter  by  the 
deed  of  May,  1783,  before  mentioned."  This  evidence  was  ob- 
jected to  by  the  defendants,  but  admitted  by  the  court,  who  sealed 
a  bill  of  exceptions. 

The  defendants  offered  in  evidence  a  book,  which  had  belonged 
to  Dr.  Smith  and  was  in  his  hand  writing,  entitled  by  him,  "  A 
Book  of  land  property,  begun  at  Philadelphia,  January  1st,  1767." 
It  contained  among  other  things,  an  account  of  the  property  con- 
veyed to  each  of  his  children.  In  the  list  of  property  conveyed  to 
his  daughter  W.  E.  Smith,  were  five  lots  in  the  town  of  Hunting- 
don, neither  of  which  was  No.  11,  the  lot  now  in  dispute.  The 
book  was  produced  by  Richard  Smith,  who  proved  that  he  had 
received  it  from  his  brother  Charles  Smith,  and  that  it  was  in  the 
game  condition  at  the  trial  as  it  was  when  he  received  it  from  his 
brother.  The  leaves  of  this  book  from  page  55,  to  page  66,  had 
been  torn  out,  but  were  all  produced  with  it,  except  the  leaf  con- 
taining pages  60  and  61 ;  and  on  the  leaves  thus  produced,  which 
had  been  torn  out,  there  was  the  following  indorsement,  in  the 
hand  writing  of  Dr.  Smith  :  "  those  taken  from  Book  of  Property 
and  paged  to  be  restored  to  their  place."  The  plaintiff  objected 
to  the  admission  of  this  book  in  evidence,  and  the  court  rejected  it, 
and  sealed  a  second  bill  of  exceptions  taken  by  the  defendants. 

A  third,  fourth,  and  fifth  bill  of  exceptions  were  taken  to  the 
following  evidence  offered  by  the  defendants,  and  rejected  by  the 
court.  1.  A  letter  from  Thomas  D.  Smith  (a  son  of  Dr.  Smith) 
to  his  father,  dated  September,  1786,  which  was  endorsed  by  Dr. 


Oct.  1822.]  OF  PENNSYLVANIA.  49 

(Patton  and  others  v.  Goldsborough.) 

Smith  and  proved  by  Richard  Smith  to  have  been  received  from  his 
father,  to  assist  in  making  out  a  list  of  the  rents  of  the  town  of  Hun- 
tingdon. In  this  letter  Thomas  D.  Smith  spoke  of  the  lot  No.  11, 
now  in  dispute,  as  his  property.  2.  A  paper  in  the  hand  writing 
of  Dr.  Smith,  dated  in  the  year  1802,  in  which  the  house  and  lot 
in  question  were  spoken  of  as  his  own  property,  (his  son  Thomas 
D.  Smith  being  then  dead.)  3.  A  plan  of  the  town  of  Huntingdon, 
made  by  Richard  Smith,  under  the  direction  of  Dr.  Smith,  in  the 
year  1791. 

Certain  points  were  proposed  to  the  court  by  the  defendants,  the 
answers  to  which  were  excepted  to. 

1st  Point. — Answer  of  the  Court.  If  there  was  an  actual  adverse 
possession  for  21  years  before  the  ejectment  brought,  it  follows, 
that  the  plaintiff  cannot  recover.  If  the  testimony  of  A.  Dean,  D. 
M'Murtrie,  and  R.  Campbell,  be  believed,  the  presumption  of  ad- 
verse possession  is  repelled :  for  they  state,  in  substance,  that  Dr. 
Smith  at  various  times,  admitted  a  previous  sale  of  the  lot  in  ques- 
tion by  him  to  his  daughter,  and  that  the  house  he  was  about  to 
build,  or  had  built,  was  on  the  lot,  and  intended  for  her  child.  If 
the  jury  believe  the  evidence,  the  statute  of  limitations  is  no  bar  to 
the  plaintiff. 

2d  Point. — Answer  of  the  Court'.  Parol  testimony  respecting 
grants  of  real  property,  is  not  so  safe  as  written :  for  the  best  me- 
mories, at  times,  will  deceive  the  most  cautious  witnesses.  But  it 
may  often  be  very  certain  and  conclusive,  and  is  not  always  to  be 
considered  dangerous.  A  jury  should  always  weigh  "  with  great 
caution,"  all  the  evidence  in  the  case.  And  we  may  add,  that  if 
the  jury  can  believe,  that  the  lot  in  question  was  granted  to  Tho- 
mas Duncan  Smith,  in  1783,  before  the  alleged  grant  to  Willia- 
mina  Smith,  then  the  plaintiff  could  not  recover.  But  on  what 
evidence  are  you  to  believe,  there  was  such  a  grant  to  Thomas  D. 
Smith  ?  The  entry  of  his  name  in  the  old  plan  produced,  with  the 
other  papers  and  deeds  is  far  from  being  conclusive  of  such 
grant. 

bth  Point. — That  the  plaintiff  must  recover  on  the  strength  of  his 
own  title  ;  and  the  plaintiff,  not  having  given  B.  R.  Morgan  and 
Charles  Smith,  notice  to  produce  drafts  and  papers,  they  or  either 
of  them  were  not  bound  to  appear  in  court,  and  swear,  that  they  had 
no  plan  of  the  town  of  Huntingdon,  prior  to  1783,  in  their  pos- 
session, and  that  the  jury  are  not  authorized  by  law  to  infer,  that 
there  is  a  plan  in  their  power  or  possession,  with  the  name  of  Wil- 
liamina  Elizabeth  Smith,  for  the  lot  in  question,  no  notice  having 
been  proved  to  have  been  served  on  them  by  the  plaintiff  in 
this  suit. 

Answer  of  the  Court. — The  plaintiff  must  recover  on  the  strength 
of  his  own  title.  Benjamin  R.  Morgan  and  Charles  Smith,  the 
other  executors,  were  not  "  bound  to  appear  in  court,  and  swear 

VOL.  ix.  G 


50  SUPREME  COURT  [Chambersburg, 

(Patton  and  others  v.  Goldsborough.) 

that  they  had  no" plan  of  the  town  of  Huntingdon,  prior  to  1783,  in 
their  possession."  But  although  they  were  not  bound  to  appear, 
they  had  a  right  to  appear,  and  prove  the  fact ;  and  it  would  have 
been  more  satisfactory  both  to  the  court  and  jury,  if  those  gentle- 
men had  communicated  their  knowledge  upon  the  trial,  either  esta- 
blishing that  there  was,  or  was  not  such  a  plan  as  is  referred  to  in 
the  deed  of  1783.  The  notice  read  is  dated  the  9th  September, 
1821,  and  only  served  on  Richard  Smith,  Mr.  Morgan,  and  Charles 
Smith  ;  the  other  executors,  were  one  at  Lancaster,  the  other  at  Phi- 
ladelphia. No  opportunity  was  therefore  afforded  for  them  to  pro- 
duce any  papers  under  it ;  and  without  such  notice,  they  were  not 
bound  to  produce  any  thing  that  would  make  against  their  claim. 
The  law,  therefore,  does  not  authorize  the  jury,  from  these  circum- 
stances alone,  to  infer,  that  there  is  a  plan  in  their  power  or  pos- 
session, with  the  name  Williamina  Elizabeth  Smith,  inscribed  for 
the  lot  in  question. 

6th  Point.— That  the  declaration  of  Doctor  Smith,  that  he  was 
building  the  stone  house  for  his  grandson,  does  not  in  law  vest  any 
title  in  that  grandson  to  the  lot  in  question. 

Jlnswer  of  the  Court. — It  is  not  contended,  that  the  declarations 
of  Doctor  Smith,  that  he  was  building  the  stone  house  for  his 
grandson,  vests  any  title  in  law,  in  that  grandson,  to  the  lot  in  ques- 
tion. The  deed  of  1783  refers  to  a  plan  of  the  town,  and  to  four 
lots  with  the  name  of  the  grantee  inscribed.  That  plan,  if  it  exist- 
ed, has  not  been  produced.  The  evidence  of  Doctor  Smithes  de- 
clarations was  only  offered  to  identify  one  of  the  lots  alleged.to  be 
granted  by  the  deed.  If  identified,  the  title  would  pass  by  the  deed  ; 
not  by  the  subsequent  declarations  of  the  grantor,  but  in  virtue  of 
the  deed  itself. 

1th  Point. — That  the  plaintiff  cannot  recover,  never  having  been 
in  possession,  nor  not  having  shown  any  grant  to  Doctor  Smith,  or 
title  out  of  the  commonwealth. 

Answer  of  the  Court. — If  no  adverse  possession  has  been  shown 
in  the  defendants  or  those  under  whom  they  claim,  the  want  of  a 
previous  possession  in  the  plaintiff  is  of  no  consequence.  Both  par- 
ties claim  under  Doctor  W.  Smith.  The  town  of  Huntingdon  was 
laid  out  by  him.  The  drafts  and  evidence  all  show,  that  both  par- 
ties claim  under  him.  We  think,  therefore,  it  was  not  necessary  on 
the  part  of  the  plaintiff  to  show  a  grant  of  Doctor  Smith,  or  that  the 
title  is  out  of  the  commonwealth. 

Shippen  and  Burnside,  for  the  plaintiffs  in  error. 

1.  The  evidence  of  the  declarations  of  Dr.  Smith  ought  not  to 
have  been  admitted  by  the  court  belGW.  It  was  improper  for  seve- 
ral reasons.  Previous  proof  had  not  been  made  that  any  town  plot 
of  the  kind  referred  to  in  the  deed  had  ever  existed,  and  been 
lost.  The  deed  maybe  considered  as  absolutely  void,  because  there 
was  no  recorded  town  plot  to  identify  the  property  conveyed.    Where 


Oct.  1822.]  OF  PENNSYLVANIA.  51 

(Patton  and  others  v.  Goldsborough.) 

there  was  a  blank  left  in  a  will  for  the  legatee's  name,  parol  evi- 
dence to  supply  it  was  rejected,  Phill.  Ev.  418.  But,  at  all  events* 
secondary  evidence  was  not  admissible  of  the  contents  of  such  plot* 
till  its  existence  and  loss  were  first  proved.  There  was  a  want  of 
due  diligence  on  this  head  in  the  plaintiff.  Notice  to  produce  it 
was  not  given  to  two  of  the  defendants,  Charles  Smith  and  Benja- 
min R.  Morgan,  who  it  appears  lived,  the  former  at  Lancaster, 
and  the  latter  at  Philadelphia,  nor  to  any  of  the  representatives  of 
the  Dr.  Smith,  except  one  of  the  defendants  Richard  Smith,  who 
resided  in  Huntingdon;  and  that  notice  was  given  only  eight 
days  before  the  trial.  Whoever  would  give  parol  evidence  of  the 
contents  of  a  deed  or  other  instrument,  must  entitle  himself  thereto, 
on  the  ground  of  its  being  lost  or  destroyed,  or  in  the  possession  of 
the  adverse  party,  and  must  further  show  that  notice  had  been 
given  to  him  to  produce  it.  The  law  abhors  nothing  more  than 
giving  parol  evidence  of  written  papers.  Campbell  v.  Wallace, 
3  Yeales,  271.  No  parol  evidence  can  be  given  of  a  fact  con- 
cerning which  there  is  a  writing  in  existence,  McKinney  v.  Lea- 
cock,  1  Serg.  S,'  Rawle,  27.  This  evidence  was  objectionable,  also, 
because  it  went  to  contradict  the  written  evidence  produced  by  the 
plaintiff;  namely,  the  town  plot  of  1776,  in  which  the  name  of 
Thomas  D.  Smith  was  marked  on  this  lot,  and  the  recorded  plot 
of  1795.  Parol  evidence  is  not  admissible  to  contradict  a  deed  or 
other  writing.  6  Binn.  483.  4  Crunch,  224.  2  W,  Bl.  1249. 
1  Wils.  34.     1  Binn.  610. 

2d,  3d,  4th,  and  5th  bills  of  exceptions.  These  bills  of  excep- 
tions all  depend  on  the  same  principle.  Our  evidence  of  the  acts 
and  declarations  of  Dr.  Smith  ought  to  have  been  received  to  rebut 
the  parol  evidence  of  his  declarations,  which  had  been  admitted  on 
the  part  of  the  plaintiff.  It  was  all  of  the  same  character ;  it  was 
secondary  evidence  resorted  to  ascertain  the  meaning  of  the  deed, 
and  the  identity  of  the  iot  meant  to  be  conveyed  by  Dr.  Smith  to 
his  daughter,  and  therefore  all  to  be  considered  and  weighed  by 
the  jury.  The  book  of  property  was  strong  evidence  on  this  sub- 
ject, and  existed  prior  to  the  deed.  The  leaves  cut  out  were 
indorsed  by  Dr.  Smith,  and  directed  to  be  inserted  according  to 
the  pages  marked  on  them.  Whether  he  withdrew  the  lost  leaf, 
whether  its  contents  were  material,  and  the  weight  due  to  the 
evidence  contained  in  the  book,  ought  to  have  been  left  to  the  jury 
to  determine. 

Charge  of  the  Conrt. — 1st  point.  The  court  erred  in  their  an- 
swer respecting  the  statute  of  limitations. 

2d  Point. — The  court  stated  their  opinion  of  the  evidence  too 
strongly,  when  they  said,  that  the  evidence  produced  was  far  from 
being  conclusive,  that  Dr.  Smith  had  made  a  grant  to  Thomas 
D.  S?nith. 

4lh  and  5th  Points. — On  these  points,  the  court  did  not  give  a 
full  and  fair  answer.  The  judge  said,  that  Charles  Smith  and 
B.  R.  Morgan,  were  not  bound  to  appear  in  court  and  produce 


52  SUPREME  COURT  [Chamber sburg, 

(Patton  and  others  v.  Goldsborough.) 

papers :  and  yet,  that  it  would  have  been  more  satisfactory  if  they 
had  appeared. 

1th  Point.  The  court  below  erred  on  this  point.  The  general  rule 
is,  that  the  plaintiff  in  ejectment,  need  only  show  his  title  as  far 
back  as  the  person  who  died  last  seised,  first  showing  the  estate  to 
be  out  of  the  proprietaries,  or  the  commonwealth.  Shrider's  lessee 
v.  JVargan,  1  Dall.  68. 

Todd  and  S.  Riddle,  contra. 

1.  The  parol  evidence  produced  by  the  plaintiff,  was  for  the  pur- 
pose of  proving  the  contents  of  a  lost  writing.  The  existence  of 
such  writing  was  proved  by  the  deed  itself:  though  it  appears  Dr. 
Smith  was  mistaken  as  to  the  fact  of  its  being  recorded.  Not  being 
on  record  it  would  naturally  pass  from  him  into  the  hands  of  his 
executors.  It  is  objected,  that  the  notice  to  produce  it  should  have 
been  given  to  all  the  executors.  In  answer  to  this  objection,  it  is 
to  be  observed,  that  on  a  former  trial  of  this  cause,  in  the  year  1817, 
when  a  verdict  was  rendered  for  the  plaintiff,  on  condition  that  he 
should  pay  for  the  value  of  the  house,  which  was  afterwards  set 
aside,  notice  was  given  to  all  the  defendants,  to  produce  this  writing. 
And  in  the  present  case,  notice  was  given  to  Richard  Smith,  who 
stated  that  he  had  inquired  of  the  rest  of  the  family,  and  they  could 
find  no  such  plot  as  that  referred  to  in  the  deed.  Under  such  cir- 
cumstances, the  want  of  formal  notice  to  them,  cannot  be  com- 
plained of.  Besides,  the  exercise  of  due  diligence  to  obtain  a  paper 
is  a  matter  of  fact,  for  the  sound  discretion  of  the  court  below,  and, 
after  hearing  the  whole  case,  they  decided,  that  proper  diligence 
had  been  employed  by  the  plaintiff.  Nor,  was  this  objection  made 
previous  to  the  admission  of  the  evidence,  that  no  notice  had  been 
given  to  two  of  the  executors.  The  deed  on  its  face,  was  uncer- 
tain, and  was  to  be  rendered  certain  in  relation  to  the  property  con- 
veyed by  other  evidence.  To  explain  a  latent  ambiguity  parol 
evidence  is  admissible.     Phill.  Ev.  410,  412. 

2d,  3d,  4th,  and  5th  bills  of  exceptions.  As  to  the  declarations 
of  Dr.  Smith,  the  distinction  is,  that  though  a  man's  declarations  are 
evidence  against  him,  or  those  claiming  under  him,  they  are  not 
evidence  for  him  to  destroy  his  prior  grant.  All  the  declarations 
and  acts  of  Dr.  Smith,  which  we  objected  to,  were  after  the  date  of 
the  deed  :  we  made  no  objection  to  any  that  had  occurred  before. 
It  is  a  sufficient  reason  to  set  aside  the  Book  of  Property,  that  it  was 
produced  in  a  mutilated  condition. 

The  court  then  told  the  counsel  they  need  not  speak  to  the  re- 
maining points. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  ejectment  brought  by  William 
Goldsborough,  the  plaintiff  below,  against  the  executors  of  the  late 
Rev.  Dr.  William  Smith,  deceased,  for  a  house  and  lot  in  the 
town  of  Huntingdon.     Both  parties  claimed  under  Doctor  Smith, 


Oct.  1822.]  OF  PENNSYLVANIA.  53 

(Patton  and  others  v.  Goldsborough.) 

and  the  principal  question  was,  whether  the  lot  in  dispute,  being 
distinguished  by  the  number  11,  in  the  town  plot,  was  included 
in  a  deed  from  the  Doctor,  to  his  daughter  Williamina  Elizabeth 
Smith,  deceased,  dated  the  15th  day  of  May,  in  the  year  1783.  On 
the  trial  of  the  cause,  the  defendant's  counsel  took  five  bills  of  ex- 
ceptions to  evidence,  and  five  exceptions  to  the  charge  of  the  court. 
In  Doctor  Sinith's  deed  to  his  daughter,  which  was  given  in  evi- 
dence by  the  plaintiff,  who  claimed  under  it,  he  grants  to  her 
among  other  things,  "  four  lots  in  the  town  oi  Huntingdon,  in  the 
county  of  Bedford,  marked  on  the  recorded  plan  of  the  said 
town,  with  the  name  of  the  said  Williamina  Elizabeth  Smith" 
The  plaintiff  served  a  notice  on  Richard  Smith,  one  of  the  defen- 
dants, who  resided  in  the  town  of  Huntingdon,  to  produce  the  town 
plan  referred  to  in  his  father's  deed,  and  proved,  that  after  diligent 
search  among  the  records  of  Bedford  county,  no  plan  of  the  town  of 
Huntingdon,  was  to  be  found  of  so  early  a  date  as  the  year  1783. 
Richard  Smith  produced  a  plan  which  was  recorded  in  the  year 
1795,  and  several  others  not  recorded  ;  but  declared  that  he  never 
saw  such  a  plan  as  that  which  was  mentioned  in  his  father's  deed, 
to  his  sister  Williamina,  nor  could  he  find  any  record  of  it.  The 
plaintiff  then  offered  to  prove,  by  parol  evidence,  repeated  declara- 
tions of  Doctor  Smith,  both  before  and  after  the  building  of  the 
stone  house,  which  he  built  on  the  lot  in  dispute  sometime  subse- 
quent to  the  year  1790,  "  that  the  lot  for  which  this  ejectment  was 
brought,  being  distinguished  by  the  number  11,  on  the  recorded 
plans  produced  by  the  said  Richard  Smith,  was  one  of  the  four  lots 
conveyed  to  his  daughter  by  the  deed  of  May  1783,  before  men- 
tioned." To  this  evidence  the  counsel  for  the  defendants,  object- 
ed, but  the  court  admitted  it,  and  an  exception  was  taken  to  their 
opinions. 

The  lots  conveyed  by  Doctor  Smith  to  his  daughter,  could  not 
be  ascertained  by  any  thing  which  appeared  on  the  face  of  the  deed. 
It  was  necessary  therefore  to  go  out  of  the  deed,  and  have  recourse 
to  the  recorded  plan  to  which  it  referred — but  no  such  plan  was  to 
be  found.  What  then  was  to  be  done  ?  Dr.  Smith  appears  to 
have  been  mistaken  in  referring  to  a  recorded  plan.  He  might  have 
deposited  one  in  the  recorder's  office  for  the  purpose  of  being  re- 
corded, but  there  is  no  reason  to  suppose  that  it  ever  was  recorded, 
because  there  was  no  proof  that  any  of  the  records  of  Bedford  county 
had  been  lost.  But  the  deed  is  not  to  be  defeated  by  a  mistaken  re- 
ference of  this  kind.  In  order  to  give  it  efficacy,  it  must  be  pre- 
sumed, that  at  its  date,  a  plan  was  in  existence,  in  which  the  name 
of  W.  E.  Smith  was  marked  on  four  lots,  and  inasmuch  as  Doctor 
Smith's  executors  could  produce  no  such  plan,  it  may  fairly  be  con- 
cluded that  it  was  lost.  In  that  case,  the  law  admits  parol  evi- 
dence of  its  contents,  and  what  evidence  could  be  more  proper,  than 
the  declarations  of  Doctor  Smith  who  made  the  deed,  and  was  pro- 
prietor of  the  ground  on  which  the  town  of  Huntingdon  was  laid 


54  SUPREME  COURT  [Chamber sburg, 

[Patlon  and  others  v.  Goldsborough.] 

out.  He  did  not  say  expressly,  that  the  plan  referred  to  in  his 
deed,  was  in  his  possession,  but  he  said  that  the  lot  No.  11,  was  one 
of  those  which  he  had  conveyed  to  his  daughter.  It  was  very  proper 
that  the  jury  should  hear  this  evidence,  from  which  they  might 
draw  their  own  conclusions.  But  it  was  objected  by  the  defendant's 
counsel,  that  notice  to  produce  the  paper  supposed  to  be  lost,  should 
have  been  served  on  all  the  executors  of  Dr.  Smith,  and  not  on 
Richard  Smith  only.  In  answer  to  this  objection,  it  is  to  be  ob- 
served, that  Richard ,  who  lived  in  Huntingdon,  was  the  only  execu- 
tor who  attended  the  trial,  and  he  declared,  on  his  examination,  that 
he  had  made  diligent  search  himself,  and  inquired  of  the  other 
members  of  the  family.  There  was  no  reason  to  think,  therefore, 
that  the  defendants  were  taken  by  surprise,  or  that  the  other  exe- 
cutors could  have  produced  any  other  papers.  Indeed,  from  the 
nature  of  Doctor  Smithes  deed  to  his  daughter,  which  depended 
for  its  efficacy  on  a  paper  in  the  Doctor's  possession,  he  stood 
pledged  to  produce  that  paper  whenever  called  on  by  his  daughter, 
or  those  claiming  under  her.  And  as  this  cause  was  tried  once  be- 
fore, and  a  new  trial  ordered  by  the  court,  it  must  have  been  known 
perfectly  well,  by  all  the  executors,  that  the  plaintiff's  case  depend- 
ed on  the  town  plan  referred  to  in  their  father's  deed,  and  if  either 
of  them  had  it,  it  was  his  duty  to  produce  it.  The  court  below 
were  satisfied,  that  every  thing  incumbent  on  the  plaintiff,  prelimi- 
nary to  the  introduction  of  parol  evidence,  had  been  complied  with, 
and  there  is  nothing  on  the  record  which  induces  me  to  be  of  a  con- 
trary opinion.  The  defendant's  counsel  urged  another  reason 
against  this  parol  evidence,  viz.  that  it  contradicted  the  written  evi- 
dence produced  by  them  ;  meaning  a  town  plan  produced  by  Richard 
Smith,  in  which  the  name  of  Thomas  D.  Smith,  (a  son  of  Dr.  Smith) 
was  marked  on  the  lot  No.  11.  If  the  plan  produced  by  Richard 
Smith,  had  been  the  one  referred  to  in  the  Doctor's  deed,  there 
would  have  been  weight  in  the  objection.  But  it  was  not.  The 
plaintiff  did  not  recognise  the  plan  which  was  produced,  as  any  part 
of  his  title,  and  so  far  as  concerned  the  lot  No.  11,  he  was  at  full 
liberty  to  contradict  it,  by  parol  evidence.  If  he  could  satisfy  the 
jury,  that  in  the  plan  referred  to  in  Doctor  Smith's  deed,  the  name 
of  W.  E.  Smith  was  written  on  the  lot  No.  11,  his  title  would  be 
established,  in  spite  of  any  other  name'which  might  have  been  writ- 
ten on  the  same  lot,  in  any  other  plan.  I  am  therefore,  of  opinion, 
that  the  parol  evidence  was  properly  received. 

The  2d  exception  was  to  the  opinion  of  the  court  in  rejecting  a 
book  offered  in  evidence  by  the  defendants,  in  the  hand  writing  of 
Dr.  Smith,  and  called  his  book  of  property.  In  this  book,  the 
Doctor  made  entries  from  time  to  time,  touching  the  disposition  of  his 
■property;  it  was  produced  by  Richard  Smith,  who  proved  that  he 
had  received  it  from  his  brother  Charles,  and  that  it  was  in  the  same 
condition  at  the  trial,  in  which  he  received  it  from  his  brother. 
The  leaves,  from  page  55  to  page  66,  had  been  torn  out,  but  were 


Oct.  1822.]  OF  PENNSYLVANIA.  55 

(Patton  and  others  v.  Goldsborough.) 

all  produced,  except  pages  60  and  61 — and  on  the  torn  leaves  which 
were  produced,    was  an  indorsement  in  the   hand  writing-  of  Dr.  ' 
Smith,   directing-  in  what  part  of  the  book  they   were  to   be  re- 
placed. 

However  reputable  the  persons  through  whose  hands  this  book 
had  passed,  the  court  was  right  in  not  permitting  it  to  be  read  in 
evidence.  Two  pages  were  still  wanting,  and  who  could  say,  what 
those  pages  might  contain.  It  would  be  unjust  to  affect  the  plain- 
tiff's title  by  a  mutilated  book,  which  might  have  been  in  his  favour 
if  the  whole  had  appeared — whether  the  book  would  have  been  evi- 
dence, if  it  had  been  entire,  I  am  not  prepared  to  say.  But,  as  it 
was,  it  was  properly  rejected. 

The  3d,  4th,  and  5th  exceptions,  depending  on  the  same  princi- 
ple, may  be  considered  together.  The  defendant  offered  in  evidence 
the  following  papers — 1.  A  letter  from  Thomas  D.  Smith,  de- 
ceased, (a  son  of  Dr.  Smith)  to  his  father,  dated  September,  1786 
— on  this  letter  was  an  indorsement  in  the  hand  writing  of  Dr. 
Smith  and  Richard  Smith  proved,  that  he  received  it  from  his  fa- 
ther, to  assist  in  making  out  a  list  of  the  rents  of  the  town  of  Hun- 
tingdon. Thomas  D.  Smith  in  this  letter,  spoke  of  the  lot  in  dis- 
pute, as  his  property — 2d.  A  paper  in  the  hand  writing  of  Dr. 
Smith,  dated  in  the  year  1802,  in  which  the  house  and  lot  in  ques- 
tion are  spoken  of  as  his  cwn  property,  (his  son  Thomas  D.  Smith 
being  then  dead.) — 3d.  A  plan  of  the  town  of  Huntingdon  made 
by  Richard  Smith,  under  the  direction  of  Doctor  Smith,  in  the 
year  1791.  These  three  papers  were  objected  to  by  the  plaintiff's 
counsel,  and  rejected  by  the  court.  The  objection  to  them  was,  that 
they  were  acts,  or  declarations,  of  Doctor  Smith,  subsequent  to  his 
conveyance  to  his  daughter.  It  was  a  good  objection ;  for  no  man 
shall  be  permitted  to  defeat  his  own  grant  by  subsequent  declara- 
tions. A  man's  confessions  are  evidence  aguinst  him,  but  he  can- 
not make  evidence  for  himself  by  counter  declarations.  On  this 
principle,  the  declarations  of  Doctor  Smith,  that  he  had  conveyed 
the  lot  to  his  daughter,  were  evidence  against  him,  and  against  his 
executors  who  claim  under  him.  When  a  confession  is  given  in 
evidence,  the  whole  of  it  is  to  be  taken  together.  But  a  confession 
made  at  one  time,  cannot  be  rebutted  by  a  declaration  at  another 
time,  necause,  if  that  were  permitted,  a  man  might  always  destroy 
his  confessions,  by  subsequent  declarations  to  the  contrary.  The 
papers  offered  in  evidence  therefore,  which  tended  to  show  a  title  in 
Doctor  Smith,  could  not  be  admitted,  in  order  to  rebut  the  parol 
declarations  by  which  he  had  confessed  the  title  to  be  in  his 
daughter. 

The  charge  of  the  court  remains  to  be  considered.  The  1st  ex- 
ception is,  to  what  was  said  on  the  subject  of  the  act  of  limitations. 
The  charge  was,  "that  if  there  was  21  years  adverse  possession 
against  the  plaintiff,  he  ought  not  to  recover;  but  that  if  the  evi- 
dence of  Alexander  Dean,  David  MMurtrie,  and  Robert  Camp- 


56  SUPREME  COURT  [Chamber  sburg, 

(Patton  and  others  v.  Goldsborough.) 

bell  was  believed,  the  presumption  of  adverse  possession  was 
•  repelled;  because  these  witnesses  swore,  that  Dr.  Smith,  at  va- 
rious times,  admitted  that  he  had  conveyed  the  lot  in  question  to 
his  daughter,  and  that  the  house  he  was  about  to  build,  or  had 
built  upon  it,  was  intended  for  her  child."  Now  who  can  deny  that 
this  evidence  destroyed  all  presumption  of  adverse  possession.  The 
matter  is  really  too  plain  to  admit  of  argument.  The  2d  exception 
is,  to  that  part  of  the  charge,  in  which  it  is  said,  "  that  if  the  lot  in 
question  was  granted  by  Dr.  Smith,  to  his  son  Thomas  D.  Smith, 
in  1783,  before  the  alleged  grant  to  his  daughter  Williamina, 
then  the  defendant  could  not  recover;  but  that  the  name  of  Thomas 
D.  Smith,  entered  in  the  old  plan  which  had  been  produced, 
with  the  other  papers  and  deeds,  were  far  from  being  conclusive 
evidence  of  such  grant  to  the  said  Thomas  D.  Smith."  The  de- 
fendant's counsel  complains,  that  the  court  stated  their  opinion  of 
the  evidence  too  strongly.  I  cannot  say  that  I  think  so.  Indeed  I 
do  not  see  how  the  court  could  have  said  less.  The  evidence  was 
certainly  very  far  from  being  conclusive.  But  it  was  left  to  the 
jury  to  estimate  it  according  to  their  own  opinion.  No  conveyance 
to  Thomas  D.  Smith  was  given  in  evidence.  But  there  were  cir- 
cumstances in  favour  of  his  title,  which  were  contradicted  by  other 
circumstances  in  favour  of  the  title  of  Williamina  Smith.  The 
evidence  could  not  properly  be  said  to  be  conclusive  on  either  side. 
The  two  next  exceptions  are,  to  the  answers  given  by  the  court,  in 
their  charge,  to  the  5th  and  6th  propositions  of  the  defendant's 
counsel,  on  which  the  opinion  of  the  court  was  required.  The  ob- 
jection is,  that  the  propositions  were  not  answered  fully  and  fairly. 
Jt  is  a  vague  kind  of  objection.  I  will  not  say  that  it  was  not  possi- 
ble to  give  a  more  explicit  answer.  But  I  think  it  was  sufficiently 
certain,  and  what  the  jury  could  not  misapprehend.  And  it  is  not 
contended  that  there  is  any  thing  against  law  in  it.  It  is  plainly 
enough  expressed,  that  the  jury  are  not  to  presume,  that  those  exe- 
cutors of  Doctor  Smith,  on  whom  a  notice  to  produce  papers  was  not 
served,  had  in  their  possession,  the  town  plan  to  which  the  Doctor's 
deed  referred — and  that  the  declarations  of  Dr.  Smith,  that  he  was 
building  the  stone  house  for  his  grandson,  did  not  vest  any  title  in 
that  grandson  to  the  lot  in  question.  These  were  substantial  an- 
swers to  the  defendant's  5th  and  6th  propositions.  The  last  excep- 
tion to  the  charge  is,  on  the  answer  to  the  defendant's  7th  proposi- 
tion. The  proposition  was,  "  that  the  plaintiff  cannot  recover,  having 
never  been  in  possession,  and  not  having  shown  any»grant  to  Dr. 
Smith,  or  title  out  of  the  commonwealth."  The  court  answered, 
"that  the  defendant's  objections  were  not  valid,  because  both  parties 
claimed  under  Doctor  Smith,  and  his  possession  was  not  adverse 
to  this."  The  answer  was  right.  According  to  the  testimony  of 
Dean  and  others,  the  possession  of  Dr.  Smith  was  in  accordance 
with  his  daughter's  title.  And  as  to  a  grant  to  him  from  the  com- 
monwealth, no  positive  proof  of  it  was  necessary,  because  both  par- 


Oct.  1822.]  OF  PENNSYLVANIA.  57 

(Patton  and  others  v.  Goldsborough.) 

ties  affirmed  that  he  was  seized  of  the  ground  on  which  he  laid  out 
the  town  of  Huntingdon,  and  both  gave  evidence  of  title  in  them- 
selves derived  from  him.  Upon  the  whole  then,  I  am  of  opinion 
that  there  is  no  error  in  this  record,  and  therefore  the  judgment 
should  he  affirmed. 

Judgment  affirmed. 


^[Chambersburg,  Oct.  21.  1822.] 
LEHN  against  LEHN,  administrator  of  LEHN. 

IN  ERROR. 

In  a  suit  for  money  lent,  an  indorsement  on  a  bond  given  after  the  loan,  by  the  plain- 
tiff to  the  defendant,  that  suit  was  brought  on  the  bond,  is  not  evidence  on  behalf 
of  the  defendant  of  that  fact. 

But  an  indorsement  on  the  bond  of  a  receipt  of  a  sum  equal  to  the  amount  loaned, 
with  interest  to  the  time  of  the  receipt,  is  evidence  to  show  an  extinguishment  of 
the  loan,  and  unless  explained,  is  conclusive. 

The  administration  account  is  not  evidence  on  behalf  of  the  administrator,  to  show 
■that  there  was  no  debt  due  from  the  intestate  to  the  plaintiff. 

Error  to  the  Court  of  Common  Pleas  of  Cumberland  county. 

Debt  to  recover  the  sum  of  eighty  dollars,  money  lent,  brought  by 
Jacob  Lelm  against  John  Lehn,  administrator  of  Jonathan  Lehn, 
deceased.  After  the  plaintiff  had  proved  on  the  trial,  the  loan  of 
this  sum  to  the  intestate,  the  defendant,  under  the  plea  of  payment, 
with  leave,  offered  in  evidence  a  bond  from  the  plaintiff  to  the  intes- 
tate, dated  the  31st  of  March,  1810,  (which  was  after  the  loan,)  for 
the  payment  of  199  dollars  23  cents,  on  the  1st  April,  1811.  It 
was  admitted,  that  this  bond  was  executed  by  the  plaintiff.  The 
defendant  further  offered  in  evidence  a  receipt  for  85  dollars,  indorsed 
on  the  bond,  and  also  an  indorsemeut  thereon,  that  suit  had  been 
brought  on  the  bond  in  Franklin  county  to  April  term,  1811.  The 
plaintiff  objected  to  this  receipt  and  indorsement,  but  the  court  ad- 
milted  them  in  evidence,  and  the  defendant  excepted. 

The  defendant  offered  in  evidence  his  own  administration  account 
on  the  estate  of  Jonathan  Lehn,  confirmed  by  the  Orphan's  Court  of 
Cumberland  county,  on  the  12th  December,  1815,  in  which  the  de- 
fendant on  the  1st  of  June,  1811,  had  only  charged  himself  with  the 
sum  of  $139  71,  on  account  of  the  principal  and  interest  then  due 
on  the  bond  above  mentioned  given  by  the  plaintiff.  This  evidence 
was  also  excepted  to  by  the  plaintiff,  and  admitted  by  the  court,  who 
sealed  another  bill  of  exceptions.  The  verdict  and  judgment  were 
rendered  in  favour  of  the  plaintiff. 

Alexander,  for  the  plaintiff,  in  support  of  the  errors  that  had  baen 
assigned,  now  contended, 

VOL.  IX.  .  H 


58  SUPREME  COURT  [Chambersburg, 

(T.clin  r.  Lclin,  administrator  of  Lehn.) 

1,  That  the  indorsement,  stating  that  suit  had  been  brought,  was 
no  evidence  of  that  fact ;  it  could  only  be  proved  by  the  record. 
Vanhorn  v.  Frick.  3  Serg.  and  Uawle,  278.     1G  Johns.  137. 

2.  The  administration  account  of  the  defendant  was  not  evidence 
in  his  own  favour. 

Ramsey,  contra. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  brought  by  Jacob  Lehn, 
against  the  administrator  of  Jonathan  Lehn,  deceased,  to  recover 
eighty  dollars,  lent  by  the  plaintiff  to  the  intestate  in  his  life  time. 

The  plaintiff  proved  the  loan  of  the  money  ;  on  which  the  defend- 
ant offered  in  evidence,  a  bond  from  the  plaintiff  to  Jonathan  Lehn, 
(dated  subsequent  to  the  loan,)  for  the  sum  of  $199  23,  (which  was 
admitted  to  have  been  executed  by  the  plaintiff.)  The  defendant 
offered  also  in  evidence  a  receipt  indorsed  on  the  said  bond,  for  the 
sum  of  $S5,  and  another  indorsement,  by  which  it  appeared  that 
suit  had  been  brought  on  the  bond  in  Franklin  county  to  August 
term,  1811.  To  all  this  evidence  the  counsel  for  the  plaintiff  ob- 
jected, and  on  its  being  admitted,  excepted  to  the  court's  opinion. 
The  bond,  with  the  receipt  for  $35,  was  evidence,  because  they 
were  in  affirmance  of  the  defendant's  plea  of  payment.  The  sum 
of  $85,  was  about  the  amount  of  $80,  (the  money  lent  by  the  plain- 
tiff to  Jonathan  Ijdin,)  with  interest  from  the  time  of  lending.  It 
was  highly  probable,  therefore,  that  the  receipt  indorsed  on  the 
bond,  was  intended  as  an  extinguishment  of  the  loan.  But  this  in- 
dorsement, mentioning  that  suit  had  been  brought  on  the  bond,  was 
not  evidence,  because  the  record  was  better  evidence  of  the  bringing 
of  the  suit. 

The  defendant  then  offered  in  evidence,  his  own  administration 
account  on  the  estate  of  Jonathan  Lehn,  in  order  to  show,  that  he 
had  charged  himself  with  no  more  than  the  sum  of  $139  71,  on  ac- 
count of  the  debt  due  from  the  plaintiff  on  his  bond  to  Jonathan  Lehn. 
This  evidence  was  also  excepted  to.  The  evidence  would  have 
been  in  accordance  with  the  receipt  for  $S5,  indorsed  on  the  bond  ; 
because  if  nothing  had  been  paid,  there  would  have  been  a  larger 
sum  than  $139  71,  due  on  the  bond.  But  it  was  not  legal  evidence, 
because  the  exhibition  of  the  administration  account  was  the  act  of 
the  defendant  himself.  It  amounted  to  no  more  than  his  own  as- 
sertion, and  was  not  evidence  for  himself  in  the  present  action.  The 
judgment  must  therefore  be  reversed,  and  a  venire  de  novo  awarded. 
At  the  same  time,  I  cannot  help  saying,  that  the  bond,  with  the  re- 
ceipt indorsed,  without  any  other  evidence,  seem  quite  sufficient  to 
delcat  the  plaintiff's  action,  unless  he  could  show,  that  lie  made 
an  actual  payment  of  the  $85  mentioned  in  the  receipt. 

Judgment  reversed  and  a  venire  fadas  de  novo  awarded. 


Oct.  1822.]  OF  PENNSYLVANIA.  59 


[ClIAMBEUSBURG,  Cct.  26,  1822.] 

Commonwealth  ex  relatione  DUFFY  against  the  President  and 
Managers  of  the  Hanover  and  Carlisle  Turnpike  Road  Company. 

Same  ex  relatione  the  President  and  Managers  of  the  Hanover 
and  Carlisle  Turnpike  Road  Company  against  CLARK,  State 
Treasurer. 

MANDAMUS. 

The  77th  section  of  the  act  for  the  improvement  of  the  state,  passed  the  2tiUi 
March,  lb20,  embraces  those  cases  only,  in  which  by  the  other  sections,  there 
is  no  special  appropriation  of  the  money  subscribed  by  the  state,  -to  future  ex- 
penditures. 

In  such  appropriations  to  future  expenditures,  the  st:ite  treasurer  is  bound  to  pay 
the  money  subscribed  to  the  company  ;  and  it  is  no  objection  to  such  payment, 
that  a  contractor  objects  to  it,  who  claims  for  work  done  before  the  passing  of  the 
act. 

The  first  of  these  cases. was  a  rule,  granted  by  thjs  court  at  the 
instance  of  James  Duffy,  requiring  the  defendants  to  show  cause, 
why  a  mandamus  should  not  issue,  commanding  them  to  grant  to 
the  said  James  Duffy  a  certificate,  issued  by  the  president,  attested 
by  the  treasurer,  and  sealed  with  the  seal  of  the  company,  and 
transmit  a  duplicate,  of  the  same  to  the  state  treasurer,  for  the  sum 
of  4,000  dollars  due  and  payable  to  the  said  James  Duffy,  by 
virtue  of  an  act  of  assembly,  entitled  "  an  act  for  the  improvement 
of  the  state,"  passed  the  26th  March,  1820. 

In  answer  to  this  rule,  the  company  showed  for  cause,  that  in 
the  year  1812  and  1813,  contracts  were  made  for  the  formation  of 
the  turnpike  road  referred  to,  which  was  to  extend  from  the  town 
of  Hanover  to  the  borough  of  Carlisle :  and  a  settlement  took  place 
between  the  company  and  John  Pedan  and  James  Duffy,  (joint 
contractors,)  on  which  a  balance  of  $3,000  appeared  to  be  due  from 
the  company  to  them  for  work  done  before  that  time  :  that  no 
work  had  been  done  by  Duffy  and  Pedan,  or  either  of  them,  since 
that  time  :  that  Pedan  had  since  died  intestate,  and  his  administra- 
tors had  notified  the  company,  not  to  pay  any  moneys  to  Duffy, 
but  to  pay  them.  They  further  returned,  that  in  the  year  1821, 
they  contracted  with  James  Duffy,  for  completing  a  further  por- 
tion of  the  said  road  ;  but  no  work  was  done  by  him  in  performance 
of  the  contract.  That  they  afterwards,  at  the  instance  of  Duffy^s 
security,  rescinded  the  contract,  and  made  a  new  one  with  J.  P. 
Helfenstein:  and  had  no  knowledge  of  any  agreement  between 
Helfenstein  and  Duffy,  till  the  time  of  the  application  by  Duffy  to 
the  state  treasurer,  to  obtain  money  in  pursuance  of  it. 

The  second  was  a  rule  on  William  ('lark,  treasurer  of  the  com- 
monwealth, to  show  cause  why  a  mandamus  should  not  issue, 
commanding  him  to  pay  to  the  president  and  managers  of  the  Hano- 
ver and  Carlisle  turnpike  road  company,  the  sum  of  4,000  dollars, 


CO  SUPREME  COURT  [Chamber  sburg, 

(Commonwealth  ex  relatione  Duffy  ».  the  President  and  Managers  of  the  Hanover 
and  Carlisle  Turnpike  Road  Company,  &c.) 

persuant  to  the  provisions  of  the  above  mentioned  act  of  as- 
sembly. 

The  treasurer  showed  for  cause,  by  a  return  to  the  court,  that 
true  it  was,  the  governor  had  drawn  a  warrant  upon  him  on  the  21st 
Mai/,  1822,  for  5,000  dollars  in  favour  of  the  president  and  mana- 
gers of  the  said  company ;  but  that  James  Duffy  claimed  4,000  dol- 
lars thereof  and  objected  to  the  payment  of  the  same  to  the  com- 
pany :  that  Duffy  claimed  under  the  articles  of  agreement  between 
the  company  and  him  in  1821,  above  mentioned,  and  under  other 
documents ;  and  that  the  matter  had  been  referred  to  the  attorney 
general,  who  had  given  an  opinion  thereon. 

It  was  admitted,  that  the  road  had  been  completed  for  the  dis- 
tance of  10  miles  from  the  15th  mile  stone,  and  that  the  governor 
had  drawn  two  warrants  in  favour  of  the  company,  for  5,000  dollars 
each,  of  which  6,000  dollars  had  been  paid  to  the  order  of  the  com- 
pany, and  4,000  dollars  still  remained  in  the  state  treasury. 

Mahon  and  Carothers  for  the  company. 
Chambers  and  Metzgar,  for  defendants. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  James  Duffy,  to  whom  the  defendants  appear 
to  be  indebted  in  the  sum  of  $4,000  obtained  a  rule  on  them,  to 
show  cause,  why  a  mandamus  should  not  issue,  commanding  them 
to  draw  their  certificate  in  his  favour  for  that  sum,  directed  to  the 
treasurer  of  the  commonwealth. 

The  case  depends  on  the  57th  and  77th  sections  of  the  "  act  for 
the  improvement  of  the  state,"  passed  the  26th  of  March,  1821. 
By  the  57th  section,  "  the  governor  is  authorized  and  required  to 
subscribe  on  behalf  of  the  commonwealth,  to  the  stock  t)f  the  Ha- 
nover and  Carlisle  turnpike  road  company,  one  hundred  shares, 
to  be  expended  in  completing  that  part  of  the  road  from  the 
loth  mile-stone,  across  the  South  mountain,  and  as  soon  as  the  first 
5  miles  shall  have  been  completed,  the  governor  shall  draw  his 
warrant  on  the  state  treasury,  in  favour  of  the  president  and  mana- 
gers of  the  said  company,  for  $5,000,  and  on  the  completion  of 
the  second  5  miles,  for  the  further  sum  of  $5,000."  It  is  admitted, 
that  the  road  has  been  completed  for  the  distance  of  10  miles,  from 
the  15th  mile  stone,  and  the  governor  has  drawn  two  warrants  in 
favour  of  the  company,  for  $5,000  each,  of  which  $6,000  have 
been  paid  to  the  order  of  the  company,  and  $4,000  still  remain  in 
the  treasury.  By  the  77th  section  of  the  act,  it  is  enacted,  "  that 
it  shall  be  the  duty  of  the  president  and  managers  of  the  several 
turnpike  road  and  bridge  companies,  to  which  the  governor  is  au- 
thorized, by  this  act,  to  subscribe  for  stock,  before  they  or  any  of 
them  shall  draw  out  of  the  state  treasury,  any  part  of  the  money 
subscribed,  to  settle  the  accounts  of  all  such  persons  who  may  have 


Oct.  1822.]  OF  PENNSYLVANIA.  61 

(Commonwealth  ex  relatione  Duffy  v.  the  President  and  Managers  of  the  Hanover 
and  Carlisle  Turnpike  Road  Company,  &,c.) 

heretofore  performed  work,  &c.  and  to  whom  they  are  indebted  for 
work  done,  &c.  and  who  hold  the  accounts  in  their  own  right  with- 
out having  heretofore  made  a  transfer  thereof  to  any  other  persons, 
and  the  amount  due  and  payable  to  them  respectively,  shall  be  cer- 
tified by  the  presidents  and  attested  by  the  treasurers  respectively, 
under  the  corporate  seal,  and  a  duplicate  of  each  certificate  shall  be 
transmitted  by  the  treasurer  of  each  company  to  the  state  treasurer, 
and  the  certificate  given  to  each  creditor  shall  be  received  by  the 
state  treasurer,  and  paid  by  him  to  the  holder  thereof  or  his  order, 
and  the  amount  so  paid,  shall  be  deducted  from  the  appropriations 
made  to  such  company." 

This  act  contains  77  sections,  making  appropriations  for  a  great 
number  of  companies ;  and  when  it  is  considered  that  so  many  dif- 
ferent interests  were  involved,  each  of  which  had  its  particular 
friends  and  patrons,  in  the  legislature,  it  is  no  wonder,  if  there  should 
appear  some  little  incongruity  in  different  parts  of  the  act.  But 
we  must  construe  it,  if  possible,  so  as  to  avoid  all  inconsistency, 
and  give  operation  to  every  part.  It  appears  then,  that  there 
were  two  objects  in  view  ;  one,  to  pay  debts  contracted  by  the 
companies,  before  the  passage  of  the  act,  and  another  to  complete 
certain  roads  which  were  in  an  unfinished  state.  Where  fhe.roads 
were  already  finished,  it  would  be  proper  to  apply  the  whole  ap- 
propriation to  the  payment  of  debts.  But  where  they  were  un- 
finished, it  might  be  expedient  to  apply  the  appropriations  in  whole 
or  in  part,  to  future  expenses,  in  order  to  accomplish  the  comple- 
tion of  the  road.  Accordingly,  it  will  be  found,  that  some  of  the 
appropriations  are  expressly  applied  to  future  expenditures,  and  in 
such  cases,  it  would  be  defeating  the  intent  of  the  act,  to  apply  the 
money  to  the  payment  of  old  debts.  The  77th  section  then,  though 
general  in  its  expressions,  must  be  restrained,  so  as  to  embrace 
those  cases  only,  in  which  there  was  no  special  appropriation  of 
the  money  subscribed,  to  future  expenditures,  and  can  have  no  ef- 
fect on  the  57th  section,  by  which  it  was  directed,  that  the  sub- 
scription to  the  Hanover  and  Carlisle  turnpike  road  company, 
should  be  expended  in  completing  a  certain  part  oi  the  road.  Still 
the  77th  section  will  not  be  nugatory,  for  it  will  apply  to  the  great- 
est part  of  the  money  granted  by  the  commonwealth  for  the  im- 
provement of  the  state.  That  this  is  the  true  construction  of  the 
law,  is  very  clear,  and  therefore  it  is  the  opinion  of  the  court,  that 
James  Dujfij  is  not  entitled  to  a  certificate  from  the  president 
of  this  company  for  the  amount  of  his  debt.  While  I  am  on 
the  subject,  I  will  give  the  opinion  of  the  court,  on  the  rules  ob- 
tained by  the  company,  on  the  state  treasurer,  to  show  cause  why 
a  mandamus  should  not  issue,  commanding  him  to  pay  to  the  com- 
pany the  sum  of  $5,000,  which  remains  in  the  treasury,  and  is  part 
of  the  money  for  which  warrants  were  drawn  on  him  by  the  go- 
vernor.    He  has  shown  for  cause,  that  James  Duffy  claims  the  said 


62  SUPREME  COURT  [Chambersburg, 

(Commonwealth  ex  relatione  Duffy  v.  the  President  and  Managers  of  the  Hanover 

and  Carlisle  Turnpike  Road  Company,  &c.) 

sum  of  $4,000,  to  which  he  says  he  is  entitled,  by  virtue  of  a  con- 
tract with  the  company.     It  appears  from  the  return  made  by  the 
president  of  the  company,  that  they  were  indebted  to  Duffy  and  a 
certain  John  Pedan,  deceased,  on  a  contract  with  them  jointly,  for 
work  done    on    the    road  prior  to  the  passage  of  the  "  act  for  the 
improvement  of  the  state"  in  the  sum  of  $3,000,  and  that  the  ad- 
ministrator of  Pedan  has  given  notice  to  the  president  and  mana- 
gers of  the  company  not  to  pay  the  money  to  Duffy.     And  it  also 
appears  by  the  said  return,  that  the  company  made  another  contract 
with  Duffy ,  for  work  to  be  done  towards  the  completion  of  the  road, 
for  the  performance  of  which,  Duffy  gave  security.     But  it  is  averred 
in  the  said  return,  that  no  work  was  done  by  Duffy  in  persuance 
of  this  contract,  and  that  at  the  request  of  Matthew  Irvine,  the  agent 
and  security  of  Duffy,  that  contract  was  rescinded.    If  the  return  made 
by  the  president,  on  behalf  of  the  company  be  false,  Duffy  may  have 
his  action  against  him ;  but,  at  present,  this  court  must  hold  the  re- 
turn for  truth.     Taking  it  for  true  then,  Duffy  has  no  right  to  a  cer- 
tificate, and  it  would  be  a  breach  of  duty  in  the  officers  of  the  com- 
pany to  grant  him  one.     If  the  company  should  apply  the  money 
granted  by  the  legislature  towards  the  expenses  of  completing  the 
road,  to  the  payment  of  an  old  debt,  they  will  violate  the  law.     And 
for  debts  contracted  in  the  completion  of  the  road,  no  certificate  is  to 
be  given,  but  the  president  and  managers  may,  if  they  please,  draw 
orders  on  the  state  treasurer.     If,  however,  the  officers  of  the  com- 
pany do  not  choose  to  draw  orders,  but  demand  the  money  from  the 
treasurer,  themselves,  it  is  our  opinion,  that,  the  treasurer  ought  to 
pay  them.     This  is  his  duty,  plainly  pointed  out  by  the  act  of  as- 
sembly, and  he  is  not  to  interfere  in  disputes  between  the  company, 
and  persons  with  whom  they  may  have  entered  into  contracts  for 
Work  to  be  done  towards  the  completion  of  the  road.     The  gover- 
nor has  drawn  his  warrant  in  favour  of  the  president  and  managers 
of  this  company,  and  their  receipt,  will  be  the  treasurer's  voucher, 
for  payment  of  the  money.     This  is  our  opinion  of  the  treasurer's 
duty ;  but  at  the  same  time,  it  is  not  thought  proper  to  issue  a  ?nan- 
dumas,  because  we  are  now  holding  a  court  in  the  southern  district, 
and  the  treasury  of  the  commonwealth  is  kept  in  the  Lancaster  dis- 
trict.    The  practice  has  been,  not  to  issue  writs  of  mandamus  ex- 
cept from  the  court  which  sits  in  the  district  in  which  the  persons 
reside,  to  whom  the  mandamus  is  to  be  directed. 

It  is  the  opinion  of  the  court,  therefore,  that  the  rules,  in  both 
cases,  should  be  discharged. 

Rules  discharged. 


Oct.' 1822.]  OF  PENNSYLVANIA.  G3 


[ClIAMBERSBURG,  OCT.  30,  1822.] 

CARL  and  others  against  the  Commonwealth. 

IN  ERROR. 

A  declaration  stating  a  bond  executed  by  four,  payable  when  three  of  the  obligors 
should  be  required,  is  good. 

After  oyer,  and  pleas  of  performance  and  payment,  to  an  administration  bond,  and 
verdict,  it  is  too  late  to  object  a  variance  between  the  bond,  and  the  form  pre- 
scribed by  the  act  of  assembly.  Nor  are  unsubstantial  variances  material  at  any 
stage  of  pleading. 

After  verdict,  the  want  of  a  verification,  in  the  assignment  of  breaches  on  a  bond 
is  cured  by  the  statute  4  and  5  Ann.  c.  16. 

A  verdict  cures  the  omission,  in  such  breaches,  to  state,  that  assets  came  to  the 
administrator's  hands. 

In  a  suit  on  an  administration  bond,  it  is  sufficient,  after  verdict,  if  one  of  the  breaches 
is  well  assigned ;  for  the  penalty  is  then  fortified. 

The  words  "and  issue"  on  the  docket,  suffice  to  cure  any  defect  of  form  in  joining 
issue. 

Any  equitable  defence  for  the  sureties  in  an  administration  bond,  founded  on  the 
negligence  of  parties,  in  not  citing  the  administrators,  is  proper  in  a  scire  facias, 
after  judgment  for  the  penalty,  but  not  in  a  suit  of  the  bond  itself. 

This  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of 
Cumberland  county,  in  an  action  of  debt  upon  an  administration 
bond,  brought  in  the  name  of  the  Commonwealth  against  Isaiah 
Carl,  George  Snyder,  Christian  Hickendom,  and  Samuel  Ickes. 
The  declaration  was  upon  a  bond  executed  by  the  defendants,  on 
the  4th  January,  1814,  in  the  sum  of  3000  dollars,  and  stated,  that 
the  defendants  acknowledged  themselves  bound  in  the  said  sum, 
"  to  be  paid  to  the  said  commonwealth,  when  they,  the  said 
Isaiah  Carl,  George  Snyder,  Christian  Hickendom,  should  be 
thereunto  afterwards  required."  The  defendants  craved  oyer  of 
the  bond  and  condition,  and  they  were  set  out.  The  bond  was 
dated  4th  January,  1814,  and  was  in  the  usual  form.  The  con- 
dition was,  that  Carl  and  Snyder,  administrators  of  John  Hippie, 
deceased,  should  file  an  inventory  in  the  register's  office  of  Cum- 
berland county,  at  or  before  the  4th  of  February,  1814,  and  should 
well  and  truly  administer,  and  should  make  an  account  at  or  before 
the  4th  of  January,  1815,  and  the  conditions  in  all  respects  corres- 
pond with  the  form  prescribed  by  the  act  of  19th  Jipril  1794,  (Purd. 
Dig.  287,)  except  in  the  following  particulars :  instead  of  the  words, 
"within  bounden,"  at  the  commencement  of  the  condition,  it  con- 
tained the  words  "  above  bounden  :"  instead  of,  "  shall  deliver  and 
pay  unto  such  person  or  persons  respectively,  as  the  said  Orphan's 
Court,  by  their  decree  or  sentence,  pursuant  to  the  true  intent  and 
meaning  of  this  act,  shall  limit  and  appoint :"  it  was  "  shall  deliver 
and  pay  over  unto  such  person  or  persons  respectively,  as  the  said 
Orphan's  Court,  by  their  decree  or  sentence  pursuant  to  the  true  in- 
tent and  meaning  of  the  several  laws  now  in  force  in  this  common- 
wealth, shall  limit  and  appoint." 

The  docket  entries  were  as  follows.     Defendants  plead  covenants 


64  SUPREME  COURT  [Chambersburg, 

(Carl  and  others  v.  the  Commonwealth.) 

performed,  and  payment  with  leave,  &c. :  and  with  leave  to  alter, 
or  add,  at  any  time  before  trial.  The  plaintiff  replies,  that  defen- 
dants had  not  performed  their  covenants,  and  that  they  have  not 
paid.     Issues  and  rule 'for  trial. 

The  following  breaches  were  assigned  on  the  part  of  the  plaintiff. 

1st.  That  Carl  and  Snyder  had  not  made  or  caused  to  be  made, 
a  true  and  perfect  inventory  of  all  and  singular  the  goods,  &c.  of 
the  said  John  Hippie,  deceased,  which  have  come  to  the  hands,  pos- 
session or  knowledge  of  them,  the  said  Carl  and  Snyder,  or  into 
the  hands  or  possession  of  any  other  person  or  persons,  for  them ; 
nor  did  they  make  or  cause  to  be  made  and  exhibited,  into  the  re- 
gister's office  in  the  borough  of  Carlisle,  for  the  county  of  Cumber- 
land, at  or  before  the  4th  day  of  February,  next  ensuing  the  date  of 
the  aforesaid  writing  obligatory,  a  true  and  perfect  inventory  of  all 
and  singular  the  goods  and  chattels,  and  credits  of  the  said  John 
Hippie,  deceased ;  nor  did  they  well  and  truly,  and  according  to 
law,  administer  all  the  goods,  &c.  of  the  said  deceased,  which  at 
the  time  of  his  death,  or  at  any  other  time  after  his  death,  came  to 
the  hands  or  possession  of  them,  or  into  the  hands  or  possession  of 
any  other  person  for  them. 

*2d.  That  the  said  Carl  and  Snyder  did  not  make  or  cause  to  be 
made,  a  true  and  just  account,  calculation,  and  reckoning,  of  their 
administration,  at  or  before  the  4th  day  of  January,  in  the  year  of 
our  Lord,  1815,  nor  at  any  other  time  before,  nor  since  that  day, 
although  to  do  the  same,  the  said  Carl  and  Snyder  thereunto  law- 
fully were  required. 

3d.  That  the  said  Carl  and  Snyder  did  not  settle,  nor  present, 
for  settlement,  examination  and  allowance,  by  the  Orphan's  Court 
of  the  county  of  Cumberland,  any  administration  account  of  any 
part  of  the  goods,  &c.  of  the  said  J.  Hippie,  deceased,  or  any  rest 
or  residue  thereof,  which  came  to  their  hands  and  possession,  or 
into  the  hands  or  possession  of  any  other  person  or  persons  for 
them  ;  nor  did  they  deliver,  nor  have  they  yet  delivered,  or  pay 
over,  any  part  or  portion  of  the  said  goods,  &c.  of  the  said  Hippie, 
deceased,  to  any  person  or  persons  lawfully  entitled  to  receive  the 
same ;  nor  did  they  apply  to  the  said  Orphan's  Court  for  their  de- 
cree or  sentence  of  distribution  in  that  behalf,  which,  pursuant  to 
the  true  intent  and  meaning  of  the  several  laws  now  in  force  in  this 
commonwealth,  the  said  Orphan's  Court  are  empowered  by  their 
decree  to  limit  and  appoint. 

4th.  That  the  said  Carl  and  Snyder,  although  often  required,  have 
not,  nor  hath  either  of  them,  performed  or  kept  any  of  the  conditions 
or  covenants  contained  in  the  said  writing  obligatory  on  their  part 
to  be  performed  and  kept,  but  have  wholly  broken  the  same,  and 
refused  and  neglected  to  perform  the  said  covenants  and  conditions, 
contrary  to  the  form  and  effect  of  the  said  obligation  and  condition ; 
and  this  the  said  commonwealth  is  ready  to  verify. 

On  the  trial  it  appeared,  that  in  the  year  I8i8,  both  Carl  and 
Snyder  were  reputed  insolvents.      On  the  12th  December,  1815,  on 


Oct.  1822.]  OF  PENNSYLVANIA.  65 

(Carl  and  others  v.  the  Commonwealth.) 

the  petition  of  George  Stroop,  guardian  of  three  of  the  minor  chil- 
dren of  John  Hippie,  deceased,  the  Orphans'  Court  of  Cumberland 
county,  awarded  a  citation  against  Isaiah  Carl  and  George  Snyder, 
to  settle  their  accounts  at  the  next  Orphans'  Court :  and  on  the  3d 
February,  1816,  an  attachment  was  awarded  against  them  by  the 
court,  on  motion  of  Stroop,  which,  however,  was  not  to  be  issued, 
if  an  account  were  settled  at  the  next  Orphans'  Court.  On  the 
14th  May,  1816,  on  motion  of  Stroop,  an  alias  attachment  was 
awarded,  which  was  continued  on  the  10th  of  September  following, 
until  the  next  stated  Orphans'  Court.  On  the  10th  December, 
1816,  Snyder  appeared,  and  entered  into  a  recognizance  to  the 
clerk  of  the  court,  himself  in  2000  dollars,  and  a  surety  in  800 
dollars,  conditioned  for  his  appearance  at  the  next  court,  and  the 
attachment  was  renewed  as  respected  Carl.  On  the  11th  Febru- 
ary, 1817,  Carl  was  brought  into  court  in  custody  of  the  sheriff, 
on  the  attachment,  and  ordered  to  give  security  himself  in  2000 
dollars,  and  one  surety  in  1000  dollars,  for  his  appearance  at  the 
next  stated  Orphans'  Court.  On  the  13th  May,  1817,  this  last  men- 
tioned order  was  continued. 

The  court  below  charged  the  jury  in  the  following  terms  : 

It  is  contended  by  the  defendants,  that  no  suit  can  be  sustained 
on  an  administration  bond,  until  an  account  be  settled  in  the  Or- 
phans' Court.  This  position  would  lead  to  such  unreasonable  re- 
sults, that  we  cannot  believe  it  to  be  good  law. 

It  is  further  contended,  that  as  the  sureties  in  the  bond  are  prin- 
cipally interested,  the  proceedings  in  the  Orphans'  Court  against 
the  administrators,  operate  as  a  discharge  to  the  sureties.  We  can 
see  nothing  in  the  evidence,  which  would  in  law  have  this  effect. 
Unless  something  was  done  without  the  consent  of  the  sureties,  by 
which  their  rights  were  exposed  to  injury,  or  the  relation  between 
them  and  their  principals  was  changed  to  their  prejudice,  they 
would  not  be  discharged. 

It  is  further  contended,  that  there  is  no  breach  in  the  condition 
of  the  bond,  because  the  administrators  were  not  legally  required 
to  settle  their  account ;  that  a  citation  and  attachment  are  not  such 
a  "  legally  requiring  "  a  settlement,  as  the  condition  of  the  bond 
requires.  We  differ  from  the  opinion  of  the  counsel  for  the  de- 
fendants, also,  in  this  position.  Finally — If  you  believe  the  testi- 
mony, and  it  has  not  been  controverted,  we  are  clearly  of  opinion 
your  verdict  should  be  in  favour  of  the  plaintiff.  There  is  nothing 
done  or  omitted  to  be  done,  if  the  testimony  be  believed,  which 
would  operate  as  a  discharge  to  the  defendants. 

The  following  errors  were  now  assigned. 

1.  In  the  declaration  it  is  not  stated,  that  all  the  defendants  were 
bound  to  pay,  when  thereunto  required. 

2.  There  are  no  issues  on  the  breaches  assigned,  nor  are  there 
in  the  three  first  assignments  any  verifications  or  tenders  of  issues. 

VOL.  ix.  I 


6G  SUPREME  COURT,  [Chamber sburg, 

(Carl  and  others  v.  the  Commonwealth.) 

3.  The  verdict  is  general,  and,  in  the  first  breach  assigned,  there 
is  no  allegation,  that  the  intestate  left  goods  or  effects,  or  that  any 
goods  or  effects  came  to  the  hands  of  the  administrators  or  any 
person  for  them. 

4.  The  second  breach  is  not  legally  assigned,  inasmuch  as  it  is 
not  stated  therein,  that  the  administrators  were  legally  required  to 
exhibit  and  settle  their  administration  account  after  the  4th  Janu- 
ary, 1815. 

5.  The  third  breach  is  illegally  assigned ;  inasmuch  as  it  is  not 
stated  therein,  that  the  administrators  were  legally  required  to  set- 
tle their  administration  account,  and  inasmuch,  also,  as  the  said 
third  assignment  is  altogether  illegal. 

6.  There  is  error  in  the  fourth  assignment  of  breaches,  in  this, 
that  it  is  not  stated  when  the  demand  of  performance  was  made, 
and  the  matters  therein  stated  do  not  amount  to  a  legal  assignment 
of  breaches. 

7.  The  court  erred  in  charging  the  jury,  that  the  proceedings  in 
the  Orphans'  Court  did  not  discharge  the  sureties. 

8.  The  court  also  erred  in  their  charge,  in  stating,  that  if  the 
jury  believed  the  testimony,  there  was  nothing  which  would  ope- 
rate as  a  discharge  to  the  defendants. 

9.  There  is  a  variance  in  the  writing  obligatory,  of  which  oyer 
is  granted,  from  that  required  by  the  act  of  assembly. 

Carothers  and  Mahon,  for  the  plaintiff  in  error. 

Ramsey  and  Chambers,  contra. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  The  first  exception  is  to  the  declaration,  which  is  on 
an  office  bond  given  by  administrators  and  their  sureties.  The 
debt  is  laid  as  being  that  of  all  the  four  defendants  ;  but  as  being 
payable  when  three  of  the  obligors  who  are  named,  (omitting  the 
name  of  the  fourth,)  "  should  be  thereunto  afterwards  required."  I 
can  see  no  error  in  this.  A  bond  by  four  may  be  good,  although 
expressly  made  payable  when  three  of  them  should  be  required  ; 
and  if  so,  a  declaration  setting  it  forth  truly,  would  also  be  good. 

The  defendants  craved  oyer  of  the  bond  and  condition,  and  had 
it :  on  which  they  pleaded  performance  of  the  condition  and  pay- 
ment ;  and  went  to  trial  on  those  pleas.  Their  counsel  now  urge 
a  variance  between  the  condition  of  the  bond  shown,  and  the  form 
prescribed  by  the  act  of  assembly.  Even  if  the  objection  did  not 
come  too  late,  the  variance  is  so  unsubstantial  as  to  render  the 
question  altogether  immaterial;  and  I  shall  therefore  dismiss  it 
without  further  notice. 

In  reply  to  the  plea  of  performance  of  the  condition,  the  plaintiff 
assigned  several  breaches ;  and  these  are  the  next  subject  of  error. 

The  first  objection  is,  that  each  several  assignment  does  not  con- 
clude with  a  verification.     After  verdict,  however,  this  defect  is 


Oct.  1822.]  OF  PENNSYLVANIA.  67 

(Carl  and  others  v.  the  Commonwealth.) 

remedied  by  the  stat.  4  and  5  Ann,  c.  16,  which  restrains  a  party 
from  taking  advantage  of  it,  except  on  special  demurrer. 

It  is  further  objected  to  the  first  breach,  which  is  laid  to  be  an 
omission  to  exhibit  an  inventory  in  the  register's  office  within  the 
time  prescribed  by  law ;  that  there  is  no  positive  averment  that  the 
intestate  left  any  goods  and  chattels  which  came  to  the  hands  of 
the  administrators,  or  of  any  person  for  them  :  without  which  they 
could  not  be  in  any  default.  This  might  possibly  be  a  valid  objec- 
tion on  demurrer;  but  after  verdict,  the  breach  is  well  enough.  It 
is  laid  to  be  neglect  in  not  exhibiting  an  inventory  of  all  the  goods 
that  came  to  their  hands;  which  necessarily  implies  that  some 
goods  actually  came  to  their  hands  ;  otherwise  the  whole  would  be 
nonsense.  It  is  however  a  defect  which  is  cured  by  verdict ;  for 
the  plaintiff  could  not  have  recovered  without  proving  the  fact  of 
assets. 

There  are  errors  assigned  with  regard  to  the  remaining  breaches, 
which,  as  the  first  breach  is  sufficient  and  shows  a  forfeiture  of  the 
bond,  need  not  be  considered  ;  and  I  shall  express  no  opinion  on 
them  further  than  to  say,  that  all  the  breaches  would  probably  be 
found  good  after  verdict.  But  at  all  events,  this  suit  is  on  an  office 
bond  given  as  a  security  for  creditors  and  those  entitled  under  the 
statute  of  distributions,  the  commonwealth  being  a  trustee  without 
the  least  imaginable  interest,  and  bound  to  prosecute  at  the  sug- 
gestion of  any  one  who  can  show  on  a  scire  facias  founded  on  the 
judgment  that  he  has  suffered  particular  injury ;  and  the  damages 
being  nominal,  for  which  no  execution  can  issue,  it  is  therefore  im- 
material whether  they  were  assessed  exclusively  on  good  breaches, 
or  on  a  mixture  of  good  and  bad.  Here  then  there  is  a  finding  in 
favour  of  the  plaintiff  on  all  the  breaches,  and  as  there  is  at  least 
one  breach  well  assigned,  that  shows  that  the  penalty  was  forfeited; 
which  is  the  only  thing  to  be  ascertained  in  this  action.  It  would 
be  otherwise  in  an  action  whose  immediate  object  is  damages  for 
breach  of  covenants :  but  here  the  judgment  is  for  the  whole  pe- 
nalty, the  damages  for  injuries  to  particular  individuals  being  as- 
certainable and  to  be  recovered  in  a  subsequent  proceeding  by 
scire  facias  on  the  judgment. 

Another  error  assigned,  is,  that  there  was  no  issue  joined.  This 
is  not  true  in  point  of  fact.  To  the  replication  assigning  the 
breaches,  there  is  certainly  no  formal  rejoinder  or  taking  of  issue ; 
but  the  word  "  issue  "  is  entered  on  the  docket  at  the  close  of  the 
short  minute  of  the  pleadings ;  and  this  we  have  always  held  to  be 
a  memorandum  for  the  clerk  to  join  the  issue  formally,  the  want  of 
which,  under  such  circumstances,  is  a  clerical  slip  and  amendable. 
To  reverse  for  a  mere  formal  defect  of  this  sort,  after  a  trial  on  the 
merits,  is  a  grievance  ;  and  to  avoid  it,  we  say  once  for  all,  we  will 
lay  hold  of  the  most  trifling  circumstance.  Whether  we  may  not 
even  go  further  when  we  are  driven  to  it  by  the  absence  of  all  pre- 


68  SUPREME  COURT  [Chambersburg, 

(Carl  and  others  v.  the  Commonwealth.) 

text,  it  is  at  present  unnecessary  to  say ;  the  docket  here  presents  a 
substantial  although  not  a  formal  joinder. 

Besides  these  there  are  objections  to  the  charge. 

Two  of  the  defendants,  who  are  but  sureties  for  the  administrators, 
thinking-  they  might  avail  themselves  of  negligence  on  the  part  of 
those  who  prosecute  this  suit  in  the  name  of  the  commonwealth,  in 
not  citing  their  principals  to  settle  an  administration  account  at  an 
earlier  day,  and  in  not  bringing  suit  in  due  season,  prayed  the  di- 
rection of  the  court  on  the  subject ;  and  for  a  supposed  mistake  in 
that  matter,  error  is  assigned.  It  is  clear,  however,  that  the  conse- 
quences of  negligence  in  g-iving  an  equity  to  sureties,  cannot  be  in- 
quired into  in  a  suit  like  the  present,  which  is  for  the  benefit  of  all 
persons  concerned,  whether  as  creditors  or  claimants  of  a  distribu- 
tive share  ;  for  a  verdict  would  be  conclusive  on  all ;  and  negligence 
in  particular  persons  should  have  no  further  effect  in  discharging 
the  sureties,  than  as  against  those  persons  themselves.  Here  the 
"commonwealth  is  a  trustee  for  all  parties  interested,  and  a  judgment 
against  her  would  be  a  complete  discharge  of  the  bond,  which  could 
never  be  put  in  suit  a  second  time.  The  equity  of  the  sureties 
against  particular  persons,  if  any  there  be,  (about  which  we  intimate 
no  opinion,)  may  be  urged  with  effect  when  those  persons  come  to 
prosecute  exclusively  for  themselves  by  a  scire  facias;  but  not  till 
then. 

It  is  also  assigned  for  error,  that  the  decision  of  matters  of  fact, 
was  withdrawn  from  the  jury;  but,  on  inspection,  this  is  not  found  to 
be  supported  by  the  record. 

Judgment  affirmed. 


[Chambersburg,  Oct.  31,  1822.] 

CHILDERSTON  and  another  against  HAMMON,  assignee  of 

ROSENBERGER. 

IN  ERROR. 

Two  defendants,  sued  jointly,  may  set  oft"  a  debt  due  by   the  plaintiff  to  one  of 
them. 

On  evidence  of  set  off  offered  by  the  defendants,  whether  or  not  the  debt,  on  which 
suit  is  brought,  is  equitably  owned  by  the  defendant's  debtor,  is  a  question  for  the 
jury  to  decide ;  and  it  is  error  for  the  court  to  decide  it,  and  reject  the  set  off. 

Error  to  the  Court  of  Common  Pleas  of  Franklin  county. 

This  was  an  action  of  debt  on  a  single  bill  for  200  dollars, 
brought  by  Martin  Hammon,  assignee  of  Abraham  Rosenberger, 
against  Richard  Childersion  and  George  Kronse,  in  which  a  verdict 
and  judgment  were  rendered  in  favour  of  the  plaintiff  in  the  court 
below. 


Oct.  1822.]  OF  PENNSYLVANIA.  69 

(Childcrston  and  another  v.  Hammon,  assignee  of  Rosenberger.) 

The  plaintiff  having-  proved  on  the  trial  the  execution  of  the  bill, 
the  defendants  gave  evidence,  to  prove  that  John  Hammon  was  real- 
ly the  owner  of  the  bill,  and  that  it  was  held  in  trust  for  him  by 
Martin  Hammon,  the  plaintiff,  and  then  offered  evidence,  that  John 
Hammon  was  indebted  to  Richard  Chiklerston,  one  of  the  defend- 
ants, in  a  sum  greater  than  the  amount  of  the  said  bill.  To  this 
evidence  the  plaintiff  objected,  and  went  into  evidence  to  prove,  that 
John  Hammon  was  not  the  owner  of  the  single  bill  ;  and  the  court, 
having  heard  the  plaintiff's  evidence,  refused  to  admit  the  evidence 
offered  by  the  defendants  :  whereupon  the  defendants  tendered  a 
bill  of  exceptions. 

Crawford,  for  the  plaintiffs  in  error,  now  contended,  that  if  the 
evidence  established  a  trust  in  John  Hammon,  for  Martin  Hammon, 
the  defendants  were  entitled  to  set  off  the  debt  clue  to  Childcrston ; 
and  that  whether  the  evidence  established  that  fact  or  act,  was  for 
the  jury  to  decide.  But  the  court  withdrew  it  from  the  jury,  and  de- 
cided it  themselves  ;  which  was  obviously  an  error. 

Chambers,  contra,  contended,  that  two  defendants,  sued  jointly, 
cannot  set  off  a  debt  due  to  one  of  them,  and  cited  to  this  purpose, 
1 1  Johns.  70.(a)  But  if  this  could  be  done,  it  was  necessary,  in  the 
first  instance,  in  this  case,  to  show,  that  John  Hammon  was  the 
equitable  owner,  and  the  evidence  did  not  establish  that  fact.  The 
court  were  the  proper  judges  of  this  preliminary  fact.  It  resem- 
bles the  case  of  a  witness  whose  competency  is  objected  to  :  there 
the  court  must,  in  the  first  instance,  decide  on  that  fact,  and  if  they 
determine  him  incompetent,  are  bound  to  reject  his  testimony. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  of  debt  on  a  single  bill  for 
200  dollars,  brought  by  Martin  Hammon,  assignee  of  Abraham 
Rosenberger,  against  Richard  Childcrston  and  George  Krouse.  The 
plaintiff  having  proved  the  execution  of  the  bill,  the  defendants  gave 
evidence  tending  to  prove,  that  John  Hammon  was  really  the  owner 
of  the  said  bill,  which  was  held  in  trust  for  him  by  Martin  Hammon 
the  plaintiff,  and  then  offered  evidence  that  John  Hammon  was  in- 
debted to  Richard  Chiklerston,  one  of  the  defendants,  in  a  sum 
greater  than  the  amount  of  the  said  bill.  To  this  evidence,  the 
plaintiff  objected,  and  went  into  evidence  to  prove,  that  John  Ham- 
mon was  not  the  owner  of  the  single  bill ;  and  the  court,  having 
heard  the  plaintiff's  evidence,  refused  to  admit  the  evidence  offered 
by  the  defendant.  It  is  evident,  that  by  this  mode  of  proceeding-, 
the  court  below  drew  to  itself  the  decision  of  fact  as  well  as  law. 
The  defendants  had  given  evidence  prima  facie  sufficient  to  show, 
that  the  bill  which  was  the  cause  of  action,  was  held  in  trust  for 

(a)  But  see  Robinson  v.  Beall.  3  Yeates,  267,  contra. 


70 


SUPREME  COURT 


[  Chambersburg, 


(Childerston  and  another  v.  Hammon,  assignee  of  Rosenberger.) 

John  Hammon.  And,  if  it  was  so  held,  the  defendants  had  a  right 
to  defend  themselves,  by  proving,  that  John  Hammon  was  indebted 
to  one  of  them,  in  an  amount  greater  than  the  debt  demanded  in 
this  suit.  They  should  have  been  permitted,  therefore,  to  go  on 
with  their  evidence  ;  after  which  the  plaintiff  might  have  produced, 
what  evidence  he  could  to  the  contrary,  and  then  the  jury  would 
have  decided,  whether  the  single  bill  was  held  in  trust  for  John 
Hammon ;  and  whether  the  said  John  was  indebted  to  Richard 
Childerston,  as  the  defendants  alleged.  But  the  court,  by  inter- 
rupting the  defendants  in  the  course  of  their  evidence,  and  letting  in 
the  evidence  of  the  plaintiff,  which  was  heard  by  the  court,  and  not 
the  jury,  took  from  the  jury  the  trial  of  a  material  fact,  viz.  whether 
the  bond  was  or  was  not  held  by  the  plaintiff  in  trust  for  John  Ham- 
mon. It  is  not  like  the  case  of  a  witness  objected  to,  on  account  of 
interest,  where  the  court,  from  necessity,  must  hear  and  decide  on 
the  fact  of  interest.  The  interest  of  the  witness  is  collateral  to  the 
issue  which  is  trying.  But  the  question  whether  the  single  bill  on 
which  this  suit  was  brought,  belonged  to  the  plaintiff,  or  was  held  in 
trust  for  John  Hammon,  was  part  of  the  merits  of  the  cause  ;  be- 
cause the  defendants  had  a  right  to  set  off  a  debt  due  from  him  who 
was  the  equitable  owner  of  the  cause  of  action.  The  defendants 
might  have  pleaded  this  matter,  and  the  plaintiffs  would  have  been 
driven  to  take  issue  upon  it,  which  would  have  carried  the  trial  to 
the  jury.  Aud  it  is  the  same  as  if  it  had  been  pleaded  ;  because 
the  defendants,  under  the  plea  of  payment,  with  leave,  <5Cc,  which 
they  put  in,  had  a  right,  by  the  rules  and  practice  of  the  court,  to 
give  any  thing  in  evidence  which  they  might  have  pleaded.  The 
court,  therefore,  assumed  the  trial  of  the  fact  which  belonged  to  the 
jury.  The  court  heard  the  plaintiff's  evidence,  decided  that  the 
plaintiff  was  not  a  trustee  for  John  Hammon,  and  for  that  reason, 
only,  rejected  the  evidence  which  was  offered  by  the  defendants. 
The  defendants  should  have  been  permitted  to  give  the  evidence 
they  offered,  because  it  was  pertinent  to  the  issue ;  and  by  not  suf- 
fering them  to  give  it,  the  court  diverted  the  trial  of  a  material  fact, 
from  its  proper  tribunal.  It  is  the  opinion  of  this  court,  therefore, 
that  the  judgment  should  be  reversed  and  a  venire  de  novo  awarded. 
Judgment  reversed  and  a  venire  de  novo  awarded. 


Oct.  1822.]  OF  PENNSYLVANIA.  71 

[Chambersburg,  Oct.  31,  1822.] 
Case  of  KEYZEY,  Jun.  executor  of  KEYZEY,  Senior. 

APPEAL. 

The  devisee  of  unpatented  land  belonging  to  the  testator,  has  no  right  to  call  upon 
the  personal  estate  of  the  testator  to  pay  the  purchase  money  and  fees  of  patenting 
the  land,  on  taking  out  a  patent. 

The  owner  of  the  land  by  a  derivative  title  from  the  warrantee,  is  not  personally  liable 
for  the  purchase  money,  it  is  a  charge  upon  the  land. 

This  was  an  appeal  by  John  Keyzey,  junior,  who  was  executor 
of  the  last  will  aud  testament  of  John  Keyzey,  senior,  deceased, 
from  a  decree  of  the  Orphans'  Court  of  Franklin  county,  on  a  settle- 
ment of  his  administration  accounts. 

The  testator,  John  Keyzey,  senior,  died  seised  of  a  tract  of  un- 
patented land,  of  about  200  acres,  which  was  originally  part  of  a 
larger  tract  of  400  acres,  for  which,  in  the  year  1755,  a  warrant  had 
issued  to  Alexander  Lowry.  J.  Keyzey,  senior,  by  his  will,  devised 
this  tract  of  land  to  his  son  J.  Keyzey,  junior,  after  the  decease  of 
his  widow,  and  appointed  him  one  of  his  executors.  In  his  account 
as  executor,  J.  Keyzey,  junior,  charged  the  estate  with  the  purchase 
money  of  this  tract  of  land,  and  the  fees  for  patenting  the  same, 
which  he  had  paid  at  the  land  office,  on  taking  out  a  patent  in  the 
year  1811,  amounting  to  267  dollars  and  72  cents,  and  with  interest 
from  the  time  of  payment.  But  the  Orphans'  Court  struck  these 
items  from  the  account;  being  of  opinion,  that  the  purchase  money 
was  a  charge  on  the  land,  and  not  a  personal  claim  on  the  testator. 

Dunlop  and  Crawford,  for  the  appellant. 

The  purchase  money  due  to  the  commonwealth  was  a  personal 
debt  on  the  part  of  the  testator,  and  as  such,  the  personal  estate 
must  first  be  applied  in  discharge  of  it.  The  warrant  is  a  contract, 
implying  an  obligation,  on  the  side  of  the  warrantee,  to  pay  the 
value  at  which  the  land  is  sold  :  and  although  there  exists  a  lien  on 
the  land,  that  does  not  destroy  the  personal  remedy,  if  the  com- 
monwealth choose  to  adopt  it.  The  lieu  resembles  a  mortgage, 
where  it  is  well  established,  that  the  devisee  is  entitled  to  call  on 
the  personal  estate,  to  have  the  mortgage  cleared  off".  The  general 
rule  is,  that  the  personal  estate  is  first  to  be  applied  for  the  payment 
of  debts,  unless  otherwise  directed  by  the  testator.  Walker  v. 
Jackson,  2  Atk.  626.  If  land  be  sold  and  the  vendee  die,  the  exe- 
cutor must  pay  the  vendor  out  of  the  personal  assets,  whatever  pur- 
chase money  may  remain  unpaid.  Coppin  v.  Coppin,  2  P.  Wins. 
291.  If  a  man  devise  a  real  estate  liable  to  the  payment  of  debts, 
giving  it  over  to  another  subject  to  those  debts,  or  giving  what  re- 
mains after  payment  of  those  debts,  the  personal  estate  shall  be 
first  applied.  Bridgeman  v.  Dove,  3  Atk.  201.  The  acts  of  the 
legislature  have  treated  the  purchase  money  due  on  the  unpatented 


72  SUPREME  COURT  [Chambersburg, 

(Case  of  Keyzey,  junior,  executor  of  Keyzey,  senior.) 

lands,  as  debts,  for  which  they  might  call  cm  the  holder  in  the  mode 
they  deemed  expedient.  By  the  act  of  9th  April,  1781,  the  arrears 
were  to  be  paid  up  in  four  annual  instalments.-  Sect.  6.  Purd.  Dig. 
370.  By  the  act  of  16th  September,  1785,  the  holder  might  give 
bond  for  paying-  in  five  equal  yearly  instalments. 

Chambers  and  Crawford,  contra,  admitted  that  in  general  the 
personal  estate  is  the  fund  for  payment  of  debts,  though  the  land  be 
liable  for  those  debts;  but  they  contended  that  this  was  no  debt 
from  the  testator  to  the  commonwealth.  He  had  made  no  contract. 
The  warrant  contains  none,  and  is,  indeed,  a  mere  grant,  if  the  war- 
rantee choose  to  have  the  land  surveyed:  if  not,  he  may  abandon 
the  warrant,  and  avoid  all  liability.  This  is  recognised  by  the 
warrant  itself,  which  provides,  that  unless  the  terms  are  complied 
with,  the  grant  shall  be  void.  There  is  no  instance  of  any  action 
brought  by  the  commonwealth,  or  proprietaries,  for  the  purchase 
money.  The  warrants  and  locations  were  often  in  the  names  of 
persons  who  had  no  knowledge  of  them,  and  who  were  not  to  have 
the  land.  The  act  of  9th  April,  1781,  shows,  that  the  common- 
wealth looked  to  the  land  only  ;  for  in  case  of  non-payment,  the  lands 
were  to  be  sold.  So  by  the  last  act  of  March  22d,  1820,  the  deputy 
surveyor  was  to  return  the  land,  and  the  attorney  general  to  insti- 
tute a  suit  in  nature  of  a  scire  facias  on  mortgage.  Suppose  this 
estate  had  passed  through  several  hands,  before  it  came  to  the  tes- 
tator, who  is  to  pay  the  purchase  money  due  on  the  warrant?  In 
equity,  the  personal  estate  is  not  applied  in  exoneration  of  the  land 
from  a  mortgage  not  given  by  the  testator,  because  it  was  not  a  debt 
due  by  the  testator.  Toll,  on  Ex.  419.  Evelyn  v.  Evelyn,  2  P.  Wins. 
664. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  ease  comes  before  us  on  an  appeal  from 
the  decree  of  the  Orphans'  Court  of  Franklin  county,  on  the  settle- 
ment of  the  administration  account  of  John  Keyzey,  junior,  who  was 
executor  of  the  last  will  and  testament  of  his  father,  John  Keyzey, 
deceased. 

The  matter  in  dispute  is  confined  to  a  single  item  of  the  account, 
and  depends  on  the  question,  whether  the  executor,  who  was  the 
devisee  of  a  tract  of  unpatented  land  belonging  to  the  testator,  had 
a  right  to  apply  the  personal  estate,  to  the  payment  of  the  sum  of 
$267  75,  which  was  due  to  the  commonwealth  for  the  purchase 
money  of  the  said  land,  interest  thereon,  and  fees  on  patenting 
the  same.  The  land  was  taken  up  by  warrant  granted  to  Alexan- 
der Lowry,  in  the  year  1755.  The  general  principle  is,  that  the 
personal  estate  is  the  proper  fund  for  the  payment  of  the  testator's 
debts,  and  shall  be  first  applied,  even  to  the  payment  of  debts 
with  which  the  real  estate  is  charged.     Thus,  if  a  testator  borrows 


Oct.  1822.]  OF  PENNSYLVANIA.  '        73 

(Case  of  Keyzey,  junior,  executor  of  Keyzey,  senior.) 

money  and  mortgages  his  land  for  it,  and  then  dies,  the  heir,  or 
devisee,  may  call  upon  the  executor  to  exonerate  the  land,  by  an 
"application  of  the  personal  assets  to  the  discharge  of  the  mort- 
gage. But  there  is  a  distinction  between  debts  originally  contract- 
ed by  the  testator,  and  those  contracted  by  another ;  for  in  the  lat- 
ter case,  the  land  is  considered  as  the  debtor,  and  shall  bear  its  own 
burden.  If  A.  purchases  an  estate  subject  to  a  mortgage,  and  dies, 
his  personal  estate  shall  not  be  applied  to  the  exoneration  of  the  land, 
unless  he  has  done  some  act  by  which  he  has  made  the  debt  his  own. 
This  distinction  will  be  found  in  Toller  on  Executors,  419,  and  in 
a  note  to  the  case  of  Evelyn  v.  Evelyn,  2  P.  Wins.  664,  where 
the  cases  which  establish  it,  are  collected.  No  doubt,  the  testator 
may  order  the  debt  to  be  paid  out  of  one  fund,  or  the  other, 
at  his  pleasure ;  but  as  there  is  nothing  in  the  will  of  John  Keyzey 
which  shows  any  decided  intention  on  this  subject,  the  case  must 
be  governed  by  the  general  principles  of  the  law.  It  is  to  be  con- 
sidered then,  what  was  the  nature  of  the  debt,  due  to  the  common- 
wealth, for  the  land  devised  to  the  son,  and  how  the  testator  was 
affected  by  it.  It  was  not  originally  contracted  by  him,  but  by 
Alexander  Lowry,  to  whom  the  land  was  granted.  Whether  Low- 
ry  was  personally  liable  to  the  late  proprietaries,  or  whether  they 
looked  exclusively  to  the  land,  is  a  point  on  which  I  shall  give  no 
opinion.  But  I  believe  there  is  no  instance  in  which  an  action  was 
ever  brought^  by  the  proprietaries,  or  by  the  commonwealth  who 
succeeded  them,  for  the  purchase  money  of  lands  granted  in  the 
usual  form.  I  speak  of  vacant  lands.  The  case  was  different, 
where  the  proprietaries  made  sale  of  their  manors  or  reserved  lands, 
for  there  they  might  have  taken  notes,  bonds,  or  some  other  writ- 
ten engagement  from  the  purchaser.  It  may  be  considered,  how- 
ever, as  very  clear,  that  even  supposing  the  original  taker  up  of 
the  land  to  have  been  liable  to  an  action  for  the  purchase  money, 
that  liability  could  not  extend  to  his  assignee.  For,  between  the 
assignee  and  the  proprietaries,  there  was  no  privity  of  contract. 
The  commonwealth  succeeded  to  the  estate  of  the  proprietaries  ; 
stands  in  their  place  ;  has  the  same  rights,  and  is  entitled  to  the 
same  remedies.  There  is  an  immense  debt  due  to  the  common- 
wealth, as  successors  of  the  proprietaries,  for  the  purchase  money 
of  unpatented  lands.  But  it  seems  never  to  have  been  supposed  by 
the  legislature,  that  the  present  owners  of  those  lands  were  under 
any  personal  responsibility.  All  the  acts  which  have  been  made 
for  the  purpose  of  enforcing  payment,  have  looked  to  the  land  as 
the  debtor.  No  proceedings  have  been  directed  but  in  rem.  By 
the  act  of  9th  April,  1781,  sect.  6.  (the  first  on  this  subject  after 
the  estate  of  the  proprietaries  was  vested  in  the  commonwealth,) 
it  was  enacted,  that  all  arrears  of  purchase  money  should  be  paid 
by  four  equal  annual  instalments  ;  and  in  case  of  default  in  pay- 
ment of  any  instalment  for  the  period  of  six  months,  the  county 
commissioners  were  directed  to  issue  their  warrant  to  the  sheriff  of 

VOL,  IX.  K       ' 


74  SUPREME  COURT  [Chambersburg , 

(Case  of  Keyzcy,  junior,  executor  of  Kcyzoy,  senior.) 

the  county  commanding  him,  after  due  notice,  to  expose  the  lands, 
or  so  much  thereof  as  should  be  necessary  to  discharge  the  sum 
due,  with  interest  and  costs,  to  sale,  §*c.  By  the  act  of  16th 
Sept.  1785,  the  owners  of  unpatented  lands,  were  permitted  to  give 
bond  and  security  for  payment  of  the  purchase  money  and  interest, 
by  five  equal  annual  instalments,  in  the  manner  prescribed  by  that 
act,  and  in  case  of  neglect  or  refusal  to  give  such  bond  and  security, 
the  lands  were  to  be  sold.  By  the  act  of  22nd  March,  1820,  in 
which  a  new  mode  of  proceeding  is  directed,  for  the  recovery  of 
arrears  of  purchase  money,  a  suit  4s  to  be  instituted  in  the  nature 
of  a  scire  facias  on  a  mortgage  against  the  owners  of  the  lands 
for  the  recovery  of  such  sum  as  appears  to  be  due,  and  the  said 
suit  is  to  be  prosecuted  to  judgment  and  recovery  in  the  usual 
manner.  It  may  therefore  be  concluded  with  certainty,  that  no 
action  affecting  John  Keyzey,  the  testator,  personally,  could  have 
been  supported  for  the  debt  due  on  the  land  devised  to  his  son,  but 
that  the  debt  was  a  charge  on  the  land  into  whatever  hands  it  might 
come.  Neither  could  any  action  have  been  supported  against  the 
executor,  to  affect  the  personal  assets  in  his  hands.  Those  assets, 
therefore,  were  not  the  proper  fund  for  paying  this  debt ;  and  con- 
sequently, were  not  to  be  applied  to  the  exoneration  of  the  land. 
The  Orphans'  Court  was  of  this  opinion,  and  struck  out  of  the  exe- 
cutor's account,  the  charge  which  he  had  made  against  the  estate, 
of  the  money  paid  to  the  commonwealth,  for  the  purchase  money 
and  patenting  fees  on  the  land  devised  to  him-  I  am  of  opinion, 
that  in  this,  the  court  was  right,  and  therefore  the  decree  should  be 
affirmed. 

Judgment  affirmed. 


[CnAMBERscunc  Oct.  31,  1822.] 

BRINDLE  and  another  against  M'lLVAINE. 

IN  ERROR. 

If  a  bill  of  exceptions  state  that  the  court  permitted  evidence  to  be  given,  and  then 
exception  was  taken,  on  error  brought,  it  cannot  be  alleged  that  no  such  evidence 
was  afterwards  given.  If  the  evidence  had  been  withdrawn,  that  should  be 
stated  in  the  bill  of  exceptions. 

The  declarations  of  a  vendor,  after  a  sale,  who  is  not  a  party  to  the  suit,  are  not 
evidence,  especially  to  contradict  a  written  instrument. 

Payments  by  the  obligor  or  obligee,  without  notice  of  any  assignment  of  the  bond, 
arc  good. 

Error  to  the  Court  of  Common  Pleas  of  Franklin  county,  in 
which  a  verdict  and  judgment  were  rendered  in  favour  of  the  de- 
fendant in  error,  the  plaintiff  below. 

It  was  an  ejectment  for  25  acres  of  land,  situate,  in  Franklin 


Oct.  1822.]  OF  PENNSYLVANIA.  75 

(Brindle  and  another  v.  M'llvaine.) 

county,  brought  against  George  Brindle  and  John  Brotherton,  by 
Elizabeth  M'llvaine,  the  plaintiff  below,  who  having  died  after  the 
commencement  of  the  action,  Alexander  M'llvaine,  her  heir,  and  de- 
visee, was  substituted  in  her  place,  according  to  the  act  of  assembly 
in  such  case  provided.  A  decision  took  place  in  this  cause,  upon 
a  former  writ  of  error,  which  is  reported,  7  Serg.  8f  Rawle,  345; 
where  the  title  of  the  parties  is  stated. 

On  the  present  trial,  in  the  court  below,  a  bill  of  exceptions  was 
signed  by  the  judges,  which  stated,  that  "  the  plaintiff,  further  to 
support,  the  said  issue,  and  to  prove  the  same  on  his  part,  proposed, 
and  offered  to  prove,  the  declarations  of  Robert  Hazlet,  in  the  year 
1809,  while  the  occupancy  of  the  land  in  dispute,  relative  to  the" 
character  in  which  he  held  and  occupied  the  same,  and  in  relation 
to  the  sale  to  Brotherton.  To  which  testimony  so  offered  by  the 
plaintiff  the  defendants  by  their  counsel  objected,  and  the  court, 
upon  argument  overruled  the  objection,  and  permitted  the  evidence 
to  be  given.  Whereupon  the  defendants  excepted  to  the  opinion 
of  the  court,  and  prayed  them  to  seal  this  bill  of  exceptions,  which 
is  accordingly  done."  A  witness  was  then  examined  on  behalf  of 
the  plaintiff,  but  he  was  not  able  to  state  any  of  HazleVs  declarations 
on  the  subjects  mentioned  in  the  bill  of  exceptions. 

The  plaintiff  further  offered  evidence  of  the  payment  of  money  to 
Robert  Hazlet  by  Elizabeth  M'llvaine,  in  the  year  1811,  and  at  other 
times  prior  to  the  commencement  of  this  suit.  The  defendants  ob- 
jected to  this  evidence,  but  the  court  admitted  it,  and  sealed  a  se- 
cond bill  of  exceptions. 

The  defendants  proposed  several  points  to  the  court,  on  which 
they  requested  them  to  charge,  and  the  answers  to  them  were  now 
assigned  for  error.  But  one,  however,  was  noticed  in  the  argumenty 
namely:  "  Unless  there  is  full  and  satisfactory  evidence  that  the  full 
amount  of  the  bond  of  Elizabeth  M'llvaine  to  Hazlet,  was  paid  to 
Hazlet,  prior  to  the  sale  made  by  him  to  Brotherton,  of  that  which 
was  then  due  has  been  since  paid  to  Brotherton,  the  plaintiff  cannot 
recover."     This  point  was  answered  by  the  court  in  the  negative. 

S.  Riddle  and  Hughes,  for  the  plaintiff  in  error. 

1st  Bill  of  exceptions.  The  declarations  of  Hazlet  were  not  evi* 
dence  to  explain  his  sale  to  Brotherton.  Me  was  not  a  party  to  the 
suit,  and  his  sale  Was  by  Written  articles  of  agreement,  on  which 
part  of  the  purchase  money  had  been  paid.  The  lease  to  him  was 
also  in  writing,  and  was  the  only  proper  evidence  of  the  character 
in  which  he  occupied  the  land.  It  could  not  be  contradicted  of 
varied  by  parol  proof. 

2d  Bill  of  Exceptions.  The  evidence  of  payments  by  E.  M'llvaine 
to  Hazlet  was  improperly  received.  These  payments  were  made  ta 
him  by  her  in  her  own  wrong.  After  his  disposition  of  the  land, 
he  was  not  authorized  to  receive  the  balance  due. 


76  SUPREME  COURT  [Chambersburg, 

(Brindlc  and  another  v.  M'llvaine.) 
Answer  of  the  Court.— After  the  sale,  the  payments  should  have 
been  made  to  Brotherton.     His  title  was  valid,  although  the  consi- 
deration was  part  in  money  and  part  in  land.     E.  M'llvaine  had  no 
equity  against  him  until  payment  of  her  bond. 
Chambers,  Jr.  and  Chambers,  contra. 

1st  Bill  of  exceptions.  The  former  opinion  of  this  court  deter- 
mined, that  the  sale  by  Hazlet  to  Brotherton  was  not  in  pursuance  of 
the  power.  No  estate  therefore  passed  by  the  sale.  But,  in  fact, 
the  defendants  were  not  injured  by  the  decision  of  the  court  below, 
for  though  the  plaintiff'  was  allowed  to  give  the  evidence  of  Haz- 
let's  declarations,  no  such  evidence  was  given.  The  witness  who 
was  expected  to  prove  it,  had  no  knowledge  on  the  subject. 

2d  Bill  of  Exceptions.  The  payments  by  E.  M'llvaine  to  Hazlet 
were  made  in  the  regular  discharge  of  her  contract :  the  bond  was 
payable  to  him,  and'she  had  no  notice  of  any  transfer  of  the  right 
in  the  bond  or  the  land. 

Answer  of  the  Court.— This  is  the  same  point  as  the  foregoing.  If 
the  payments  to  Hazlet  were  regular,  E.  M'llvaine  was  not  bound  to 
pay  Brotherton. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,    C.   J.      This'  ejectment   was    brought   by   Elizabeth 
M'llvaine,   upon    whose    death,    Alexander   M'llvaine,    her    heir, 
was  made  plaintiff,  according  to  the  act  of  assembly  in  such  case 
provided.     It  is  the  second  time  it  has  been  brought  before  this 
court  by  writ  of  error,  and  having  fully  stated  the  material  facts 
in  my  former  opinion,  I  shall  refer  to  that  statement  without  re- 
peating it  now.     On  the  last  trial  in  the  court  below,  the  counsel 
for  the  defendant  took  two  bills  of  exceptions  to  evidence,  and  seve- 
ral exceptions  to  the  charge  of  the  court.     The  1st  bill  is  as  fol- 
lows :     "  The  plaintiff  proposed  and  offered  to  prove,  the  declara- 
tions of  Robert  Hazlet,  in  the  year  1809,  while  in  the  occupancy  of 
the  land  in  dispute,  relative  to  the  character  in  which  he  held  and 
occupied   the    same,  and    in  relation  to  the  sale  to  Brotherton,  to 
which  testimony  so  offered  by  the  plaintiff,  the  defendants  by  their 
counsel  objected,  and  the  court,  upon  argument,  overruled  the  ob- 
jection, and  permitted  the  evidence  to  be  given,  whereupon  the  de- 
fendants excepted  to  the  opinion  of  the  court,"  &c.     The  plaintiff's 
counsel  have  attempted   to  destroy  this   bill  of  exceptions,  by  al- 
leging, that  after  the  court  had  decided,  that  the  evidence  might  be 
given,  the   plaintiff's  witness  was  not  able  to  give  any  testimony 
respecting  HazleVs  declarations,  and  therefore  the  defendants  were 
not  injured  by   the  opinion  of  the  court  to  which  they  excepted. 
But  this  is   an  allegation  which   cannot  be  permitted,  because  it  is 
in  direct  contradiction  to  the  bill  which  is  part  of  the  record,  and 
in  which  it  is  averred,  that  the  evidence  was  permitted  to  be  given. 


Oct.  1822.]  OF  PENNSYLVANIA.  77 

(Brindle  and  another  v.  M'llvainc.) 

After  the  court  had  decided  that  the  evidence  was  admissible,  it 
was  in  the  power  of  the  plaintiff  to  withdraw  it,  in  which  case  it 
should  have  been  inserted  in  the  record  that  it  was  withdrawn,  but 
as  this  record  stands,  it  must  be_  taken  for  granted  that  it  was  given. 
Were  the  declarations  of  Hazlet  evidence  then  or  not  ?  In  the 
first  place,  they  were  offered  to  show  the  character  in  which  he 
occupied  the  land  in  dispute.  But  that  character  had  been  fixed, 
by  a  written  lease  which  he  had  accepted  from  Brotherton,  and 
which  could  not  be  contradicted  by  any  declarations  of  his — and  in 
the  next  place,  his  declarations  were  offered,  respecting  a  previous 
sale  which  he  had  made  to  Brotherton,  by  written  articles  of  agree- 
ment. Hazlet  was  no  party  to  the  suit,  and  therefore,  his  declara- 
tions subsequent  to  the  sale,  were  not  evidence  against  Brotherton. 
But  there  was  a  particular  impropriety  in  hearing  parol  declarations, 
touching  a  written  contract.  I  am  of  opinion,  therefore,  that  the 
evidence  ought  not  to  have  been  received. 

The  second  exception  was,  to  the  admission  of  evidence  offered 
by  the  plaintiff"  to  prove  the  payment  of  money  to  Robert  Hazlet, 
by  Elizabeth  Mllv  aine,  in  the  year  1811,  and  at  other  times  prior 
to  the  commencement  of  this  suit."    Mrs.  Mllvaine  had  given  her 
bond  to  Hazlet,  on  the  24th  March,  1808,  for  <£325,  (the  purchase 
money  of  the  land  in  dispute)  payable  on  the  25th  March,  1808 ; 
why  then  should  the  plaintiff  not  give  evidence  of  payment  at  any 
given  time.     Because,  says  the  defendant,  Hazlet,  before  the  year 
1811,   had   sold    the  land   to    Brotherton,  and  if  Mrs.   M'-Ilvaine 
considered  that  sale  as  void,   and   insisted  on  keeping  the   land 
herself,  she  ought  to  have  paid  the  balance  of  the  purchase  money 
to  Brotherton  and  not  to   Hazlet.      How  the  matter  would  have 
stood,  if  Brotherton  had  given  her  notice   that  her  bond  was  as- 
signed to  him,  and  warned  her  not  to  make  payment  to  Hazlet, 
is  another   question.     It   does   not  appear,  that  she  received  any 
such  notice,  and  on  that  state  of  the  case,  it  is  extremely  clear  that 
she  had  a  right  to  make  payment  to  Hazlet ;  nay,  that  she  could 
not  safely  have  paid  her  money  to  any  body  else.     Because,  even 
if  she  knew  that  Hazlet  had  sold  to  Brotherton,  it  did  not  follow 
that  he  had  assigned  her  bond  to  him.     And  it  was  decided  by  this 
court,  in  the  case  of  Bury  v.  Hartman,  (4  Serg.  and  Rawle,  175) 
that  payment  to  the  obligee,  after  assignment,  and  before  notice,  is 
good  against  the  assignee.     I  am  of  opinion,  therefore,  that  the  evi- 
dence was  properly  admitted. 

The  defendant's  counsel  took  exceptions  to  several  answers  of 
the  court  below,  to  questions  proposed  for  their  opinion  ;  but  as 
they  have  only  argued  one  of  them,  I  shall  not  take  notice  of  any 
other.  That  question  (the  6th)  is  in  the  following  terms.  "  Un- 
less there  was  full  and  satisfactory  evidence,  that  the  full  amount 
of  the  bond  of  Elizabeth  M'llraine  to  Hazlet,  was  paid  to  Hazlet, 
prior  to  the  sale  made  by  him  to  Brotherton,  or,  that  whatever 
was  then  due,  has  been  since  paid  to  John  Brotherton,  the  plain- 


78  SUPREME  COURT  [Chambersburg, 

(Brindlc  and  another  v.  M'llvaine.) 

tiff  in  this  case  cannot  recover."  The  court  negatived  the  defen- 
dant's proposition,  and  very  rightly,  for  reasons  which  I  have  al- 
ready given  in  my  remarks  on  the  2d  bill  of  exceptions.  In  the 
case  here  put  by  the  defendant's  counsel,  there  is  no  mention  of 
notice  to  Elizabeth  M'llvaine,  of  the  assignment  of  her  bond,  and 
under  these  ciicumstances,  her  payment  of  the  whole  money  to  Haz- 
let,  and  nothing  to  Brotherton,  would  be  no  impediment  to  the  plain- 
tiff's recovery.  I  am  of  opinion,  on  the  whole,  that  judgment  should 
be  reversed  and  a  venire  de  novo  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


[Chambersburg,  October,  1822.] 
CROTZER  and  another  against  RUSSELL,  executor  of  LYON. 

IN  ERROR. 

Where  the  writ  states  the  plaintiff  to  be  executor  of  A.  who  was  a  surviving  obli- 
gee with  B.  it  is  no  variance,  though  the  statement  describe  the  bond  as  given  to 
A.  and  B.  executors  of  C.  and  the  bond  is  in  that  form. 

A  deed  for  land  accepted  by  the  vendee  after  articles  of  agreement,  though  it  differ 
in  some  respects  from  the  articles,  is  to  be  considered  as  expressing  the  ultimate 
intent  of  the  parties,  where  there  is  no  misconception  of  the  deed  by  either  party. 

Error  to  the  Court  of  Common  Pleas  of  Cumberland  county. 

Debt  on  bond.  The  prcecipe  and  writ  were  in  name  of  James 
M.  Russell,  executor  of  John  Lyon,  who  was  surviving  obligee  in 
a  bond  with  William  Alexander,  deceased,  as  plaintiff,  against 
Christian  Crolzer  and  Christian  Ruhl,  defendants.  The  plaintiff 
afterwards  filed  a  statement  describing  the  bond  as  having  been 
given  by  the  defendants  to  John  Lyon  and  William  Alexander, 
executors  of  Samuel  Lyon,  deceased,  and  the  action  was  after- 
wards so  entitled  on  the  docket  at  the  plaintiff's  instance.  The 
defendants  pleaded  payment  with  leave  to  give  the  special  matters 
in  evidence :  to  which  the  plaintiff  replied  non  solverunt,  and  issue 
was  joined. 

The  bond  being  offered  in  evidence  by  the  plaintiff  on  the  trial,  and 
agreeing  with  the  statement,  the  defendant  objected  to  its  being 
read  in  evidence  because  it  differed  from  the  writ.  But  the  court 
overruled  the  objection,  and  admitted  the  bond,  and  a  bill  of  ex- 
ceptions was  taken  by  the  defendants. 

The  defence  set  up  was,  that  the  bond  given  by  the  defendants 
was  in  part  payment  of  a  tract  of  land  conveyed  to  them  by  John  Lyon 
and  William  Alexander,  executors  of  S,  Lyon,  in  pursuance  of 
articles  of  agreement  that  had  been  made  between  the  parties  :  and 
that  in  the  conveyance,  a  small  parcel  of  land,  and  water  right,  in- 
cluded within  the  lines  of  the  tract,  were  excepted,  though  they 
were  embraced  by  the  articles,  and  the  exception  was  not  explained 


Oct.  1822.]  OF  PENNSYLVANIA.  79 

(Crotzer  and  another  v.  Russel,  executor  of  Lyon.-) 

to  the  defendants,  nor  understood  by  them,  when  they  accepted  the 
deed,  and  gave  their  bonds. 

The  court  charged  the  jury  very  fully,  and,  among  other  things, 
stated,  that  "  articles  of  agreement  are  in  their  nature  and  terms 
executory,  and  express  the  agreement  of  the  parties,  that  they  shall 
be  consummated  afterwards  by  the  execution  of  a  deed.  In  making 
and  executing  the  deed,  the  parties  have  a  right  to  alter  their 
original  agreement,  and,  if  a_diflerence  afterwards  appear,  between 
the  terms  of  the  articles  of  agreement  and  deed  of  conveyance,  in 
the  absence  of  other  proof,  the  law  considers  the  articles  of  agree- 
ment to  be  null  and  void."  They  further  charged  (after  some  pre- 
liminary remarks,)  in  the  words  of  the  3d  point  proposed  to  them 
by  the  defendants,  "  that  if  the  jury  believed,  that  the  reservation 
of  the  small  parcel  of  land  and  water  right  were  not  read  and  fully- 
communicated  to  the  defendants,  or  they  did  not  understand  the  na- 
ture of  the  reservation,  then  the  jury  might  make  such  deduction 
from  the  bond,  as  would  compensate  them  for  the  loss  of  the  land 
so  reserved." 

The  4th  point  proposed  to  the  court  by  the  defendants  was,  that 
as  there  is  no  court  of  equity  in  this  state,  to  give  redress  to  the 
defendants  in  cases  of  concealment,  misconception  of  their  rights  or 
fraud,  the  jury  have  full  power  under  the  equitable  circumstances 
of  the  case,  and  under  the  pleadings,  to  make  an  allowance  to  the 
defendants  even  to  the  amount  of  the  debt  and  interest,  and  from  a 
consideration  of  such  circumstances  might  return  a  general  verdict 
for  the  defendants. 

The  court  charged  that  "  the  jury  have  such  equitable  powers,  if 
the  law  and  the  facts  of  the  case  authorize  them  to  exercise  it." 

The  jury  found  a  verdict  for  the  plaintiff,  for  the  sum  of  2429 
dollars  68  cents,  and  judgment  was  rendered  accordingly. 

Errors  were  now  assigned,  and  in  support  of  them  Ramsey  and 
Douglass,  argued  for  the  plaintiffs  in  error. 

Lyon  and  Mahon,  contra. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  action  was  brought,  in  the  name  of  James 
M.  Russel,  executor  of  John  Lyon,  who  was  surviving  obligee  in 
a  bond  with  William  Alexander,  deceased.  The  plaintiff  did  not 
file  a  declaration,  but  a  statement  under  an  act  of  assembly,  in 
which  the  bond  is  described  as  having  been  given  by  the  defendants 
to  John  Lyon  and  William  Alexander,  executors  of  Samuel  Lyon, 
deceased.  On  the  trial  of  the  cause,  the  plaintiff  produced  the 
bond,  which  agrees  exactly  with  the  statement,  but  the  defendants 
objected  to  it,  because  it  varied  from  the  writ.  The  evidence  was 
admitted,  and  the  court's  opinion  excepted  to.  This  is  the  1st  er- 
ror assigned.  The  bond  was  good  evidence.  It  agreed  with  the 
statement  and  did  not  vary  from  the  writ.     It  was  not  necessary 


"9 


80  SUPREME  COURT  [Chamber  sburg, 

(Crotzer  and  another  v.  Russcl,  executor  of  Lyon.) 

to  state  in  the  writ,  that  the  obligees  were  described  as  executors  of 
Samuel  Lyon.  The  action  was  not  brought  by  the  plaintiff  as  exe- 
cutor of  Samuel  Lyon,  but  of  John  Lyon.  The  fact  was,  that 
John  Lyon  and  William  Alexander,  executors  of  Samuel  Lyon, 
sold  to  the  defendants  fand  which  belonged  to  the  estate  of  Samuel 
Lyon,  and  took  bonds  for  the  purchase  money  to  themselves,  de- 
scribing themselves  as  executors  of  Samuel  Lyon.  But  this  de- 
scription was  an  immaterial  circumstance,  not  necessary  to  be  no- 
ticed in  the  writ,  because  this  action  was  not  brought  by  the  plaintiff 
as  representing  the  estate  of  Samuel  Lyon,  but  as  executor  of  John 
Lyon.  There  was  no  error  therefore  in  the  admission  of  the  bond 
as  evidence. 

The  defendants  excepted  also  to  the  charge  of  the  court,  and  to 
the  answer  given  by  the  court  to  one  of  the  points  on  which  their 
opinion  was  required.  The  defendants  gave  evidence,  that  they 
had  entered  into  written  articles  of  agreement  with  John  Lyon 
and  William  Alexander,  for  the  purchase  of  a  tract  of  land,  after 
which  a  conveyance  was  executed,  and  the  defendants  gave  their 
bonds  for  the  purchase  money.  In  the  conveyance,  there  was  an 
exception  of  a  small  parcel  of  land,  included  within  the  lines,  and 
the  defendants  insisted,  that  they  had  been  deceived  as  to  this  ex- 
ception, which  was  not  explained  to  them  when  they  accepted  the 
deeds  and  gave  their  bonds.  The  court  charged  the  jury,  "  that  if 
they  should  be  of  opinion  that  the  deed  was  not  read  and  fully  com- 
municated to  the  defendants,  or  they  did  not  understand  the  nature 
of  the  exception  of  the  small  parcel  of  land,  then  the  jury  might 
make  such  deduction  from  the  defendants'  bond,  as  would  compen- 
sate them  for  the  loss  of  the  land  so  excepted."  This  surely  was 
as  much  as  the  defendants  could  ask,  and  all  they  did  ask,  but  they 
complain,  that  the  court  said,  that  "  where  the  articles  of  agreement 
and  deed  of  conveyance  differed,  the  articles  were  considered  as 
null  and  void."  What  the  court  meant  was  this,  that  when  articles 
of  agreement  are  entered  into,  by  which  a  conveyance  of  land  is 
covenanted  to  be  made,  and  afterwards  a  conveyance  is  executed, 
and  accepted,  which  differs  in  some  respects  from  the  articles,  the 
deed  of  conveyance,  which  is  the  consummation  of  the  agreement, 
shall  be  taken  for  the  ultimate  intent  of  the  parties,  and  prevail  over 
the  articles,  and  this  is  undoubtedly  true,  where  there  is  no  miscon- 
ception or  misapprehension  of  the  deed  of  conveyance  by  either  party. 
If  the  defendants  were  fully  informed,  that  the  deed  which  they 
accepted,  contained  a  reservation  of  a  parcel  of  land  contained  in 
the  articles  of  agreement,  and  having  accepted  the  conveyance, 
gave  their  bonds  for  the  whole  purchase  money,  neither  in  law  or 
equity  would  they  be  entitled  to  any  abatement.  But,  if  they  ac- 
cepted the  deed,  under  a  misapprehension,  occasioned  by  the  fault  of 
the  plaintiff,  however  strict  the  law  might  be,  they  would  be  entitled 
to  relief  in  equity ;  so  the  court  told  the  jury,  and  what  more  could 
the  defendants  desire  ?     The  charge  was  so  plain  that  it  was  ira- 


Oct  1822.]  OF  PENNSYLVANIA.  81 

(Crotzer  and  another  v.  Russel,  executor  of  Lyon.) 

possible  the  jury  could  mistake  it.  And  whether  the  jury  con- 
sidered the  articles  as  null  and  void,  or  not,  was  of  no  manner  of 
importance,  provided  they  were  to  make  the  defendants  all  the 
allowance  which  the  equity  of  their  case  demanded,  in  consequence 
of  any  mistake  as  to  the  nature  of  the  deed  of  conveyance.  This 
they  were  expressly  instructed  to  do,  and  therefore  I  am  of  opinion 
there  was  no  error  in  the  charge. 

I  will  now  consider  the  answer  of  the  court  to  the  4th  point  pro- 
posed by  the  defendants'  counsel.  The  proposition  was  this — that 
by  the  law  of  Pennsylvania,  the  jury,  under  the  direction  of  the 
court,  might  take  the  equity  of  the  defendants'  case  into  considera- 
tion, and  make  such  deduction  from  their  bond  as  in  equity  they 
were  entitled  to.  The  court  answered  in  the  following  words: — 
"  The  jury  have  such  equitable  power,  if  the  law,  and  the  equity  of 
the  case  authorize  them  to  exercise  it."  The  defendants  complain 
that  from  the  obscurity  of  this  answer,  the  jury  were  left  in  the 
dark,  as  to  their  duty  in  the  particular  case  before  them.  There 
might  be  something  in  this  objection,  if  the  court  had  not  fully  ex- 
plained the  principle,  of  law  and  equity  by  which  the  jury  were  to 
be  governed  in  their  charge.  But  having  explained  it  very  clearly, 
and  very  favourably  to  the  defendants,  it  cannot  be  said  that  the 
jury  were  left  in  the  dark.  The  answer* of  the  court  to  the  4th 
proposition  informed  the  jury  of  their  general  powers,  and  the 
charge  instructed  them  in  the  law  as  applicable  to  the  evidence  be- 
fore them.  I  am  of  opinion,  on  the  whole,  that  there  is  no  error  in 
any  part  of  this  record,  and  therefore  the  judgment  should  be 
affirmed.  Judgment  affirmed. 


[Chambersburg,  Oct.  1822.] 

CROTZER  and  another  against  RUSSEL,  executor  of  LYON. 

IN  ERROR. 

Where  the  defendant,  in  a  suit  on  a  bond  for  part  of  the  purchase  money  of  land 
sets  up  a  defect  of  title  and  misrepresentation  as  a  defence,  a  recovery  in  a  former 
suit  on  another  bond  for  part  of  the  purchase  money,  on  which  it  is  alleged  the 
same  defence  was  made,  is  no  reason  why  the  court  should  reject  the  evidence  of 
the  defendant :  whether  the  same  matters  had  been  tried  in  the  former  action  is 
for  the  injury. 

Error  to  the  Court  of  Common  Pleas  of  Cumberland  county. 

This  was  another  action  of  debt,  brought  by  the  same  persons 
who  were  plaintiffs  in  the  foregoing  suit,  against  the  same  defen- 
dants, upon  another  bond  for  the  purchase  money,  and  a  verdict 
and  judgment  were  rendered  for  the  plaintiffs  below. 

On  the  trial  of  this  suit,  which  took  place  after  the  verdict  was 
rendered  in  the  foregoing  case,  the  defendants  offered  to  prove,  that 

VOL.  ix.  L 


82  SUPREME  COURT  [Chambersburg, 

(Crotzer  and  another  v.  Russel,  executor  of  Lyon.) 

the  bond  on  which  this  suit  was  brought  was  given  for  the  pur- 
chase money  of  a  tract  of  land  ;  that  the  deed  of  conveyance  re- 
served a  nook  of  land,  which  the  defendants  supposed  to  be  included 
in  their  purchase,  and  which  had  been  represented  to  them  as  in- 
cluded therein  by  John  Lyon  and  William  Lyon,  from  whom  they 
made  the  purchase,  and  that  they  were  ignorant  of  the  reserva- 
tion contained  in  the  said  deed.  The  plaintiffs  objected  to  this 
evidence ;  and,  to  support  their  objection,  read  the  record  of  the 
suit  previously  tried,  and  gave  in  evidence,  that  the  previous  suit 
was  on  a  bond  given  for  part  of  the  same  purchase  money,  for  the 
same  tract  of  land,  and  that  on  the  trial  thereof,  the  defendants  set 
up  the  defence  now  offered.  The  court,  thereupon,  overruled  the 
evidence,  and  the  defendants  tendered  a  bill  of  exceptions. 

Douglass,  for  the  plaintiff,  in  error,  stated  the  errors  assigned, 
and  was  proceeding  to  argue  them  ;  but  on  an  intimation  from  the 
court  that  there  was  clearly  error  in  this  case,  because  the  court 
below  took  on  itself  the  right  of  deciding,  whether  a  certain  point 
had  been  tried  and  decided  by  a  former  jury,  in  a  trial  on  another 
bond,  between  the  same  parties,  which  ought  to  have  been  left  to 
this  jury,  the  argument  proceeded  no  further. 

Douglass  and  Ramsey,  for  the  plaintiffs  in  error. 
Lyon  and  Mali  on,  contra. 

Per  Curiam.  The  defendants  below,  offered  to  prove,  that  the 
bond  on  which  this  suit  was  brought,  was  given  for  the  purchase 
money  of  a  tract  of  land  :  that  in  the  deed  of  conveyance,  there  was 
a  reservation  of  a  nook  of  land,  which  the  defendants  supposed  to 
be  included  in  their  purchase,  and  which  had  been  represented  to 
them  as  included  therein,  by  John  Lyon  and  William  Alexander, 
from  whom  they  made  the  purchase,  and  that  they  were  ignorant 
of  the  reservation  contained  in  the  deed  of  conveyance.  To  this 
evidence  the  plaintiffs  objected,  and  in  order  to  prove  that  it  was 
improper,  they  gave  evidence  to  show,  that  the  defendants  had  set 
up  the  same  defence  in  another  action  brought  against  them  by  the 
plaintiffs  on  another  bond  given  by  the  defendants  to  the  said  Alex- 
ander and  Lyon,  in  part  of  the  purchase  money  for  the  same  tract 
of  land,  and  that  the  jury  had  found  a  verdict  against  the  defen- 
dants. The  court  having  heard  this  evidence,  rejected  the  evidence 
offered  by  the  defendants.  It  is  very  clear,  that  the  evidenee  offered 
by  the  defendants  was  'prima  facie  a  good  defence,  and  must 
have  been  so  considered  by  the  court  below,  if  they  had  not  heard 
other  evidence,  from  which  they  concluded,  that  the  evidence  offer- 
ed by  the  defendants  was  improper.  But  in  order  to  arrive  at  this 
conclusion,  the  court  took  upon  itself  to  decide  on  the  truth  of  the 
matter  alleged  by  the  plaintiffs,  viz.  that  the  defence  set  up  by  the 
defendants  had  been  tried  and  decided  against  them  before.  But 
this  should  have  been  left  to  the  jury,  and  by  this  mode  of  proceed- 
ing, the  court  took  the  whole  trial  into  its  own  hands.    The  defend- 


Oct.  1822.]  OF  PENNSYLVANIA.  83 

(Crotzer  and  another  v.  Russel,  executor  of  Lyon.) 

ants  should  have  been  permitted  to  go  on  with  the  evidence,  and 
then  the  plaintiffs  might  have  shown  what  they  could  to  take 
off  the  force  of  it.  But  whether  any  matter  has  been  tried  between 
the  same  parties,  and  decided  before,  was  a  fact,  depending  in  part 
on  parol  evidence,  and  therefore  to  be  decided  by  the  jury,  and  not 
by  the  court.  We  have  had  occasion  to  consider  points  of  this 
kind  in  several  instances  very  lately,  and  have  reversed  the  judg- 
ments, because  the  court  below  had  stopped  one  party  in  the  course 
of  his  evidence,  and  heard  the  evidence  of  the  other  party,  after 
which  they  rejected  the  evidence  first  offered.  It  appears  to  us, 
that  if  this  practice  is  pursued,  the  trial  of  facts  will  be  transferred 
from  the  jury  to  the  court.  We  are  therefore  of  opinion,  that  this 
judgment  should  be  reversed  and  a  venire  de  novo  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


END  OF  OCTOBER  TERM,  CHAMBERSBURG,  1822. 


CASES 


IN  THE 


SUPREME  COURT  OF  PENNSYLVANIA. 

EASTERN  DISTRICT— DECEMBER  TERM,  1821 


[Philadelphia,  Dec.  19,  1822.] 

SHAFFER  against  BROBST. 

IN  ERROR. 

When  it  appears  by  the  record,  that  after  the  return  of  summons  a  rule  was  entered 
to  declare,  and  after  declaring-,  the  plaintiff  entered  a  rule  to  plead,  and  signed  judg- 
ment for  want  of  a  plea,  the  judgment  is  regular. 

The  court  will  not  presume  a  rule  to  have  been  entered  by  the  prothonotary  of  his  own 
mere  motion. 

If  such  were  the  case,  the  remedy  is  by  application  to  the  court  below,  and  not  by 
writ  of  error. 

Error  to  the  Court  of  Common  Pleas  of  Lehigh  county. 

Case,  by  Christian  Brobst,  the  plaintiff  below,  against  William 
Shaffer,  the  defendant  below,  in  which  a  summons  issued  to  Janu- 
ary term,  1820,  and  the  sheriff  returned  "  summoned."  It  ap- 
peared by  the  record,  that  on  the  6th  September,  1820,  a  rule 
was  entered  to  declare  by  the  1st  day  of  next  term,  or  non  pros. 
On  the  21st  of  the  same  month,  a  declaration  was  filed,  containing  a 
single  count  for  money  had  and  received,  and  on  the  6th  December, 
1820,  a  rule  was  entered  to  plead  in  six  weeks,  or  judgment. 
January,  22d,  1821,  judgment  was  entered  according  to  the  rule. 
A  fieri  facias  was  issued  returnable  to  January  term,  1821,  which 
was  returned  'nulla  bona,  and  a  testatum  fi.  fa.  was  then  issued  to 
Northampton  county,  returnable  to  April  term,  1821,  on  which  a 
levy  was  made  on  personal  property.  On  the  30th  April,  1821, 
H.  Ross  appeared  for  the  defendant,  and  a  motion  was  made,  found- 
ed on  an  affidavit  of  defence,  and  that  the  defendent  had  no  know- 


86  SUPREME  COURT  [Philadelphia, 

(Shaffer  v.  Brobst.) 

ledge  of  the  suit,  to  open  the  judgment,  and  let  the  defendant  into  a 
defence,  which  the  court  below  rejected. 

Scott,  for  the  plaintiff  in  error,  contended,  that  the  judgment  was 
erroneous,  because  it  was  entered  without  the  defendant's  appear- 
ance. The  defendant  never  appeared  till  fifteen  months  after  suit 
brought,  and  after  his  goods  had  been  levied  on.  It  is  true,  there 
is  a  rule  to  declare  entered,  but  the  record  does  not  show  by  whom  : 
it  may  have  been  done  by  the  prothonotary,  without  authority. 
The  rule  to  plead  is,  therefore,  irregular,  and  will  not  warrant 
this  judgment.  The  judgment  is  equally  irregular,  if  considered  as 
a  judgment  by  default  for  want  of  appearance. '  The  act  of  assembly 
of  the  20th  March,  1724-5,  regulating  the  practice  on  writs  of  sum- 
mons and  arrest,  sect.  1.  Purcl.  Dig.  22,  provides  for  entering  judg- 
ment by  default  after  filing  a  common  appearance,  where  the  offi- 
cer certifies  to  the  court  upon  oath  or  affirmation,  that  on  or  before 
the  return  of  such  writ,  he  had  summoned  the  defendant,  mention- 
ing the  day  he  did  so  ;  and  requires,  that  the  summons  shall  have  been 
served  ten  days  before  the  return  day,  and  that  the  declaration  shall 
have  been  filed  five  days  before  the  return  day.  None  of  these  re- 
quisites appear  on  this  record.  The  return  is  generally,  "  summon- 
ed," without  any  specific  oath  as  to  the  day,  and  the  declaration  was 
filed  long  after  the  return  day.  In  Fitzsimmons  v.  Solomons,  2  Binn. 
436.  the  judgment  below  was  reversed  in  the  court,  because  it  ap- 
peared from  the  prcecipe,  that  only  five  days  intervened  between 
the  issuing  and  return  of  the  summons. 

Binney,  for  the  defendant  in  error,  argued,  that  sufficient  appear- 
ed on  the  record  to  support  the  judgment.  As  to  the  practice  in 
proceedings  by  summons,  the  act  of  1724—5,  has  received  a  con- 
struction from  long  usage,  that  where  the  record  shows  that  the 
party  was  summoned,  the  court  will  presume,  to  support  the  judg- 
ment, that  this  summons  was  served  in  proper  time,  unless  the  con- 
trary appears  by  the  record.  It  has  not  been  customary  for  the 
sheriff  to  make  a  special  oath  in  each  case.  But  independently  of 
this,  the  record  sufficiently  shows  an  appearance.  A  rule  to  de- 
clare was  taken :  this  must  have  been  taken  by  the  defendant  in 
person,  or  by  attorney :  for  he  has  a  right  to  appear  in  person. 
The  plaintiff  having  declared,  a  rule  was  taken  to  plead,  and  it 
must  be  presumed  it  was  made  known  to  the  defendant  or  his  at- 
torney. 

Per  Curiam.  The  error  assigned  in  this  case,  is,  that  a  rule 
to  plead  was  laid  on  the  defendant,  and  judgment  entered  against 
him  by  default,  before  he  had  appeared.  Had  the  case  been  so,  it 
would  fhave  been  error.  But  it  appears  by  the  record,  that  the 
plaintiff  had  been  laid  under  a  rule  to  declare,  previous  to  his  taking 
a  rule  to  plead  against  the  defendant.  Now  this  rule  to  declare, 
must  have  been  obtained  by  the  defendant  or  his  attorney  ;  for  we 
cannot  hearken  to  the  suggestion,  of  its  being  laid  by  the  court  of 
its  own  mere  motion.    If  the.  jirothonotary  had  entered  this  rule 


Dec.  1822.]  OF  PENNSYLVANIA.  87 

(Shaffer  v.  Brobst.) 

by  mistake  the  remedy  would  have  been  by  motion  to  the  court  be- 
low, who  would  have  ordered  it  to  be  struck  out.  As  the  record 
stands,  it  appears  to  us,  that  the  rule  to  plead  was  regularly  entered, 
and  therefore  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


[Philadelphia  Dec.  22,  1822.] 

THOMAS  against  WRIGHT. 

IN  ERROR. 

The  sheriff  's  docket  is  not  evidence  to  show  the  time  when  an  inquisition  was  held 
on  z.Ji.fa.  where  there  is  a  blank  left  in  the  inquisition. 

But  the  time  may  be  shown  by  parol  evidence. 

The  day  on  which  an  inquisition  was  taken  is  not  a  matter  of  record,  but  a  matter 
in  pais. 

A  mere  return  to  a  liberari  by  the  sheriff,  that  he  had  delivered  possession  to  the 
plaintiff  in  that  suit,  does  not  vest  the  title  in  such  plaintiff:  it  is  only  an  authority 
to  enter;  and  he  must  bring  an  ejectment,  or  obtain  the  actual  possession,  be- 
fore  it  can  be  considered,  in  an  ejectment  between  others,  as  a  subsisting  title  in 
him. 

Where  the  defendant  in  ejectment  has  only  an  equitable  title  to  hold  real  estate  till 
certain  moneys  are  reimbursed,  the  plaintiff  is  entitled  to  recover,  if  such  moneys 
are  reimbursed  at  the  time  of  trial:  but  if  the  defendant  has  a  legal  title  of  that 
description,  the  plaintiff  cannot  recover,  unless  the  moneys  were  reimbursed  at  the 
institution  of  the  ejectment. 

A  contract  that  a  person  shall  occupy  a  house,  and  put  it  in  repair,  and  in  considera- 
tion thereof  shall  enjoy  the  property  at  a  certain  rent,  till  the  repairs  be  reim- 
bursed, makes  such  person  a  tenant  from  year  to  year,  and  not  liable  to  eject- 
ment when  the  contract  is  ended,  without  notice  to  quit. 

This  was  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  in  an  ejectment  brought  by  William 
Wright,  the  plaintiff  below,  against  John  Thomas,  for  a  house  and 
lot  in  the  county  of  Philadelphia,  in  which  a  verdict  and  judgment 
were  rendered  for  the  plaintiff.  Two  bills  of  exceptions  were  taken 
by  the  defendant  to  the  admission  of  evidence,  and  a  third  to  the 
charge  of  the  court. 

The  property  in  cjuestion  belonged  to  the  plaintiff's  father,  George 
Wright,  who,  in  the  year,  1801,  conveyed  it  to  a  certain  John 
Thomas,  (not  the  defendant.)  in  trust,  to  pay  over  the  rents  and 
profits  to  the  said  George  and  his  wife  Alice,  during  their  lives,  and 
afterwards  to  the  plaintiff  in  fee.  George  Wright  died,  and  after 
him  Alice;  and  the  plaintiff,  (who  was  an  infant  at  the  time  of  the 
conveyance,)  remained  absent  till  the  year  1817.  In  the  meanwhile 
the  property  had  gone  out  of  repair,  and  had  been  also  subject  origi- 
nally to  a  ground  rent.  By  an  arrangement  made  between  Thomas 
the  trustee,  Mr.  Odenheitner,  the  ground  landlord,  and  Rose 
Thomas,  under  whom  the  defendant  claimed,  it  was  agreed,  that 
Rose  Thomas  should  put  the  house  in  repair,  and,  in  consideration 
thereof,  should  enjoy  the  property  at  a  rent  of  60  dollars,  until  she 


88  SUPREME  COURT  [Philadelphia, 

(Thomas  v.  Wright.) 

was  reimbursed  the  money  she  expended.  A  considerable  sum 
was  expended  by  Rose  Thomas  in  repairs,  and  one  question  of  fact 
was,  whether  she  had  enjoyed  the  property  long;  enough  to  reim- 
burse herself.  In  the  summer  of  the  year  1817,  the  plaintiff  Wil- 
liam Wright,  returned  to  Philadelphia,  and  claimed  the  property  : 
but  evidence  was  given  by  the  defendant,  that  at  a  meeting"  at  Mr. 
Bradford's  office  about  that  time,  at  which  the  plaintiff,  Rose 
Thomas,  Thomas  the  trustee,  and  Mr.  Odenheimer,  the  ground 
landlord,  were  present,  the  above  mentioned  arrangement  was  assent- 
ed to  by  the  plaintiff,  and  a  balance  admitted  still  to  be  due  to  Rose 
Thomas,  on  account  of  moneys  expended  in  repairs.      In  October, 

1817,  the  plaintiff  being  indebted  to  Jacob  Mooney,  gave  him  a 
bond  and  warrant  of  attorney,  upon  which,  in  December,  1817, 
judgment  was  entered  up,  and  execution  issued  and  levied  on  the 
property,  and  an  inquisition  was  afterwards  held  in  March,  1318, 
as  the  defendant  alleged.  This  inquisition  having  found  that  the 
rents  and  profits  would  pay  the  debt  in  seven  years,  a  liberari  fa- 
cias was  taken  out. 

On  the  trial,  the  defendant  contended  that  the  moneys  expended 
for  repairs  were  not  reimbursed  at  the  time  of  trial  ;  but  that  at  all 
events  they  were  not  reimbursed  when  the  ejectment  was  brought, 
and,__  therefore,  the  plaintiff  could  not  recover  in  this  ejectment.  He 
also  contended,  that  there  was  an  outstanding  title  in  Jacob  Mooney, 
under  the  liberari  facias,  and  produced  the  liberari  facias,  and 
inquisition,  after  having  proved  the  judgment  above  mentioned,  and 
fieri  facias.     The   liberari  facias    was    tested  the  5th    March, 

1818,  and  the  sheriff's  return  was  indorsed,  that  he  had  delivered 
possession  on  the  18th  June,  1818.     The  inquisition  purported  to 

have  been  taken  on  the day  of  March,  eighteen  hundred . 

The  defendant  then  offered  the  docket  of  Thomas  Truxtun,  sheriff, 
of  June  term,  1818,  to  show,  that  the  inquisition  annexed  to  the 
writ  of  liberari  facias  was  held  and  taken  by  the  said  sheriff  and 
jury,  in  March,  1818.  The  plaintiff  objected  to  this  evidence,  and 
the  court  overruled  it,  which  was  the  subject  of  the  first  bill  of  ex- 
ceptions. 

The  defendant  then  offered  parol  evidence  to  prove,  that  the  in- 
quisition was,  in  fact,  held  and  taken  by  the  said  sheriff  and  jury, 
in  March,  1818.  This  evidence  was  also  objected  to  by  the  plaintiff, 
and  overruled  by  the  court,  and  a  second  bill  of  exceptions  was  taken 
by  the  defendant. 

The  third  bill  of  exceptions  was  to  the  following  charge  of  the 
court. 

The  plaintiff  has  showed  a  good  and  sufficient  title.  The  deed 
of  trust  vested  the  property  in  the  plaintiff,  immediately  on  the 
death  of  Slice  Wright,  and  no  conveyance  was  necessary  to  be 
made  by  the  trustee,  to  the  plaintiff,  after  the  death  of  Slice.  The 
defendant  has  contended,  that  the  plaintiff  must  have  a  right  to 


Dec.  1822.]  OF  PENNSYLVANIA.  89 

(Thomas  v.  Wright.) 

possession  of  the  premises  at  the  time  of  the  action  brought,  and  that 
if  the  right  of  possession  was  not  in  the  defendant,  it  was  in  Jacob 
Mooney,  a  creditor  of  the  plaintiff,  who  had  sued  out  the  writ  of 
liberari  facias,  by  virtue  of  which  possession  of  the  premises  had 
been  delivered  to  him.  We  think  that  Mooneyes  possession  under 
the  liberari  facias  was  no  more  than  legal  possession,  and  if  the 
proceeding  on  the  liberari  facias  had  been  fair  and  regular,  Mooney 
might  have  brought  an  ejectment  for  the  premises.  In  such  suit, 
he  must  have  shown  the  proceedings  to  be  regular  ;  but  on  the  face 
of  the  inquisition  they  are  not  fair  and  regular — there  is  a  blank  in 
the  inquisition  which  cannot  be  supplied  by  parol  proof.  Had  ap- 
plication been  made  to  the  court  within  a  short  time  after  the  return 
of  the  inquisition,  it  might,  perhaps,  have  been  amended  ;  but  that 
would  have  been  discretionary  with  the  court,  under  all  the  circum- 
stances. The  defendant  has  no  right  to  set  up  a  title  in  a  third  per- 
son, unless  it  be  a  good  and  subsisting  title  at  the  time.  Mooney 
may  have  abandoned  his  title,  or  may  have  been  paid.  The  de- 
fendant must  show  that  Mooneyes  title  still  subsists,  and  as  Mooney 
does  not  set  up  his  title,  we  cannnot  presume  it.  But  it  was  con- 
tended, that  the  jury  may  infer  the  time  when  the  inquisition  was 
executed  from  the  liberari,  inquisition,  sheriff's  return,  and  record 
of  the  District  Court.  We  do  not  think  so  ;  the  jury  have  no 
such  right,  it  would  be  giving  them  power  to  amend.  We  put  there- 
fore entirely  out  of  the  question  the  title  of  Mooney,  and  the  jury 
are  not  to  take  it  into  consideration.  But  admitting  the  proceedings 
were  regular  and  a  legal  possession  in  Mooney,  the  defendant 
stands  in  the  light  of  a  tenant  of  the  plaintiff,  and  as  the  tenant  of 
the  plaintiff  the  law  is,  that  he  cannot  set  up  even  a  good  outstanding 
term  against  his  landlord.  But  it  is  further  contended  by  the  de- 
fendants, that  under  this  arrangement  made  by  Thomas,  the  trus- 
tee, with  Mr.  Odenhcimer,  the  defendant  had  a  right  to  retain  pos- 
session of  the  premises,  until  reimbursed  the  amount  of  moneys  ex- 
pended by  him  for  repairs,  taxes,  and  ground  rent.  The  plaintiff 
contends,  that  Thomas,  the  trustee,  had  no  right  to  make  such  an 
arrangement ;  strictly,  perhaps,  he  could  not  as  trustee.  But  after 
the  trust  had  expired,  Thomas  acted  as  the  agent  of  the  plaintiff', 
who  sanctioned  his  authority.  We  think  the  arrangement  made 
with  Mr.  Odenheimer  binding  on  the  plaintiff.  Under  that  ar- 
rangement, as  to  the  repairs,  and  the  amount  of  them,  and  whether 
they  were  tenantable  repairs,  these  are  questions  for  the  jury.  The 
defendant  must  be  reimbursed ;  but  the  question  is,  whether  it  is 
sufficient  if  it  is  found  that  he  is  now  reimbursed,  or  whether  the 
plaintiff  had  a  right  to  bring  his  action,  unless  the  defendant  had 
been  reimbursed  at  the  time  the  action  was  brought.  The  defen- 
dant contends  that  the  plaintiff  cannot  recover,  unless  the  defen- 
dant was  reimbursed  at  the  time  the  action  was  brought,  or  unless 
the  plaintiff  had  offered  to  reimburse  him  before  the  suit  was 
brought.     The  plaintiff  contends  that  the  defendant  was  reimbursed 

VOL.   IX.  M 


90  SUPREME  COURT  [Philadelphia, 

(Thomas  v.  Wright.) 

before  the  suit  was  brought,  but  says  it  is  sufficient,  if  it  appear  that 
the  defendant  was  reimbursed  at  the  time  of  the  trial  The  defen- 
dant contends  that  he  was  not  reimbursed  before  the  suit  was 
brought.  The  law  appears  to  be  well  settled  as  contended  for  by 
the  plaintiff,  and  that  it  is  so,  appears  by  the  cases  of  JVharfv. 
Howell,  5  Binn.  499.  and  4  Binn.  31.  If  the  defendant  be  paid  at 
the  time  of  the  trial  it  is  sufficient.  The  defendant  admits  that  he 
is  now  paid,  and  offers  to  deliver  up  the  possession.  It  is  said,  that 
it  is  a  simple  question  of  costs.  By  Avhose  faults  have  the  costs 
occurred  1  The  costs  are  the  consequence  of  the  defendant's  per- 
severing to  hold  the  possession,  and  not  rendering  an  account  to  the 
plaintiff,  and  attempting  to,  show  that  the  expenditures  have  not 
been  satisfied  out  of  the  rents.  The  defendant  has  only  an  equity, 
the  legal  title  is  in  the  plaintiff.  When  the  plaintiff  claimed  pos- 
session, the  defendant  should  have  offered  to  give  up  the  property, 
and  shown  his  account  of  expenditures.  It  was  not  incumbent  on  , 
the  plaintiff  before  action  brought,  to  make  tender  of  payment  or 
claim  any  account.  Why  should  the  plaintiff  make  a  tender,  when 
the  defendant  offered  no  account  at  Mr.  Bradford' 's  office.  Before 
the  suit  brought  there  were  no  vouchers  produced,  nor  was  the  ac- 
count settled.  Mr.  Bradford  stated  that  he  acted  as  the  attorney  of 
the  defendant,  and,  of  course,  made  out  the  account  as  favourable 
as  he  could  for  the  defendant.  That  account  can  have  no  operation 
in  this  case,  the  only  question  is,  is  the  defendant  now  paid  ?  .If 
he  is,  the  plaintiff  is  entitled  to  recover,  and  the  costs  will  neces- 
sarily follow  the  verdict. 

The  bill  of  exceptions  contained  no  statement  of  the  testimony 
previously  given  on  the  trial,  but  referred  to  it  as  contained  in  the 
notes  of  the  four  counsel  employed  in  the  cause,  and  in  the  notes 
of  the  judges  who  tried  it. 

J.  S.  Smith  and  Ewing,  for  the  plaintiff  in  error  cited  Brown  v. 
Vanduscn,  10  Johns.  51.  M'Cormick  v.  Meason,  1  Serg.  Sf  Rawle, 
92.  Morehead'  s  lessee,  v.  Pearce,  2  Yeates,  456.  Lynn  v.  Bisberg, 
2.  Dall.  180.  Mageehan  v.  Adams's  lessee,  2  Binn.  100.  2  Yeatcs, 
150. 

Keemele  and  JVcwcomb,  contra,  cited,  act  of  1705,  1  Sm.  Lavs, 
63.  Moody  v.  Vandyke's  lessee,  4  Binn.  31.  Wharf  v.  Howell,  5 
Binn.  499.  (*) 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  reference  in  the  bill  of  exceptions  to  the 
notes  of  the  four  counsel  concerned  for  the  parties,  and  the  notes 
of  the  evidence  of  the  judges  before  whom  the  cause  was  tried,  does 
not  answer  the  design  of  a  bill  of  exceptions,  which  is,  to  desire 
the  opinion  of  the  court  on  certain  points  of  law  propounded  to  them 
on  some  given  state  of  evidence.     To  refer  then  to  the  notes  of  six 

(u)  The  case  was  but  partially  argued,  owing  to  an  expectation  of  a  compromise. 


Dec.  1822.]  OF  PENNSYLVANIA.  N.: 

(Thomas  v.  Wright.) 

gentleman,  however  accurate  and  correct  they  may  be  in  noting  the 
evidence,  cannot  be  said  to  afford  a  precise  statement  of  facts.     The 
notes  will  not  always  agree,  nor  is  it  to  be  expected  that  they 
should.    If  they  disagree,  what  is  the  reviewing  court  to  do?    They 
cannot  decide  upon  their  relative  accuracy  and  exactness.     Besides, 
it  is  imposing  on  the  court  above  a  task  which  their  duty  does  not 
require  of  them,  of  wading  through  volumes  of  notes,  where  only 
a  small  portion  of  them  relates  to  the  particular  point,  in  which  the 
opinion  of  the  court  is  required.     This,  besides  consuming  time  un- 
necessarily, creates  confusion,  and  incertitude  as  to  the  facts ;  for  the 
bill  does  not  draw  the  whole  matter  into  examination,  but  only  the 
point  on  which  it  is  taken.    So  much  difficulty  may  not  arise  in  the 
present  case,  in  relation  to  which,  I  do  not  particularly  make  the  obser- 
vation, but  with  reference  to  a  practice  which  ought  not  to  be  coun- 
tenanced.    It  saves  a  little  labour  at  the  moment,  but  finally  wastes 
much  time.     There  is  no  doubt  from  the  whole  record,  but  that 
the  plaintiff  below,  defendant  in  error,  is  the  owner  of  the  proper- 
ty in  question  :   that  is,  he  has  the  title  to   it ;   for  cestui  que  trust 
can  in  this  state  sustain  ejectment  in  his  own  name.     But  one  man 
may  have  the  right  of  possession,  and  the  other  the  right  of  pro- 
perty, and  the  right  of  possession  is  the  sole  inquiry  in  ejectment. 
The  defence  set  up  by  the  plaintiff  in  error,  defendant  below,  was, 
that  the  property  was  levied  on  by  the  sheriff,  as  the  estate  of  the  de- 
fendant in  error,  at  the  suit  of  Jacob  Mooney;  that  an  inquisition  was 
held,  that  it  would  pay  the  debt  and  damages  within  seven  years, 
as  was  found  by  the  inquisition  ;  that  a  liberari  facias  issued,  on 
which  it  was  returned,  executed,  and  possession  delivered  to  the 
plaintiff  in  the  judgment.     The  plaintiff' in  error  offered  to  prove 
this  by  the  record  and  return  of  the  sheriff,  (the  inquisition  annex- 
ed to  the   liberari  facias  being  in  blank  as  to  the  day  and  year 

in  which  it  was  taken  by  the  sheriff  and  jury,  viz.   on  the 

day  of  March,  one  thousand  eight  hundred .)  This  was  objected 

to,  and  the  plaintiff  offered  the  sheriff's  docket  to  prove  that  it  was 

executed March,  1818.     This  evidence  was  overruled,  and  I 

cannot  say  there  was  error  in  this.  It  was  the  mere  private  book 
of  the  sheriff:  the  transaction  was  a  recent  noe,  and  there  had  been 
no  actual  correspondent  possession.  But  the  defendant  below  fur- 
ther offered  to  prove  by  the  witnesses,  that  the  judgmant  was  exe- 
cuted on  the day  of  March,  1818,  and  this  was  likewise  re- 
fused. This  evidence  was  competent.  It  was  impossible  that 
the  inquisition  could  have  been  taken  in  March,  1800 :  there  had 
been  then  no  judgment;  the  teste  of  the  liberari  facias  was  1818. 
Thomas  Truxton  was  not  the  sheriff  in  1800.  This  inquest  was 
not  a  judicial  act  and  record  of  the  court.  The  sheriff  was  out  of 
office — was  dead — there  could  be  no  order  to  amend  or  amendment 
made.  The  day  on  which  it  was  taken  was  not  a  matter  of  absolute  ve- 
rity as  a  record  of  the  court,  but  a  matter  merely  in  pais.  If  it  had 
even  stated  a  precise  date,  the  mistake  could  be  put  right,  and  parol 


92  SUPREME  COURT  [Philadelphia, 

(Thomas  v.  Wright.) 

evidence  admitted  to  show  when  it  was  really  done.  Indeed  it  re-, 
quired  no  explanation.  The  evidentiarei  was  sufficient  to  show  the 
real  year — that  it  was  1818,  and  not  1800.  But  to  remove  all  doubt, 
it  was  competent  to  the  plaintiff  to  show,  by  the  jurors  or  others, 
the  year  in  which  it  was  executed.  This  however  would  have  gone 
but  a  little  way,  it  would  not  have  placed  either  title  or  possession 
in  Mooney ;  for  the  return  of  the  sheriff,  as  the  court  very  proper- 
ly instructed  the  jury,  did  not  prove  an  actual,  but  a  virtual  de- 
livering of  possession.  On  the  execution  of  the  liberari  facias, 
the  sheriff  is  to  deliver  to  the  creditor  the  premises,  in  the  same 
manner  as  lands  are  delivered  on  writs  of  ejectment  in  England. 
But  this  delivering  is  no  more  than  an  authority  to  enter,  and  the 
creditor  must  bring  an  ejectment,  4  Mod.  48.  1  Crompt.  Pr.  363. 
Addison,  103.  State,  v.  Kirkpatrick  and  another.  By  act  of 
13th  April,  1807,  Purd.  Dig.  262,  on  the  execution  of  a  libe- 
rari facias,  where  the  defendant,  or  his  tenant  is  in  possession, 
the  sheriff  shall  deliver  the  actual  possession  thereof  to  the  plaintiff, 
or  his  agent.  When  the  liberari  facias  was  executed,  the  defendant 
in  error  was  not  in  possession,  nor  the  plaintiff  in  error  considered 
as  tenant :  it  is  however  certain  that  neither  was  dispossessed.  It  is 
not  pretended  that  any  possession  was  really  delivered  to  Mooney,  or 
any  further  prosecution  of  his  judgment  and  execution,  nor  was 
there  any  connexion  then  or  now  between  Mooney  and  the  plain- 
tiff in  error,  or  any  claim  set  up  by  Mooney.  And  though  it  be 
true,  that  the  tenant  in  possession  may  set  up  an  outstanding  title 
in  a  stranger,  yet  it  must  be  a  subsisting  one.  The  title  could  not 
be  said  to  be  in  Mooney.  He  has  not  taken  the  possession,  nor 
has  he  made  any  entry.  The  proceeding  is  altogether  inchoate :  it 
cannot  be  compared  to  a  sale  by  the  sheriff,  and  deed  executed  and 
acknowledged,  for  that  vests  the  absolute  title  in  the  purchaser. 
There  is  no  error  in  this  instruction  to  the  jury:  it  was  not  a  bar 
to  the  plaintiff's  recovery.  Besides  these  reasons,  there  is  another 
very  competent  one.  The  plaintiff  in  error  was  considered  as  the 
tenant  of  defendant,  as  coming  into  possession  and  holding  under 
him,  under  some  contract  held  to  be  binding,  either  made  by  au- 
thority of  the  defendant  in  error  or  ratified  by  him.  Among  the 
conditions  was  one,  that  the  plaintiff  in  error  should  be  reimbursed 
for  the  repairs  he  might  make.  Now  it  is  admitted,  that  when 
the  action  was  brought,  he  had  not  been  reimbursed,  though  at 
the  time  of  trial  he  was.  At  any  rate  it  was  left  to  the  jury,  to 
find  whether  he  was  reimbursed  at  the  time  of  trial,  and  if  they 
found  he  was,  then  whether  he  was  reimbursed  or  not  at  the  time  of 
action  brought,  the  court  said  was  altogether  immaterial,  and  they 
should  find  for  the  plaintiff  below,  the  defendant  in  error,  with 
costs.  If  this  were  a  matter  all  in  equity,  the  plaintiff  in  error 
having  a  legal  right  both  to  the  property  and  to  the  possession,  and 
the  defendant  but  a  mere  equity,  the  cases  of  Moody  v.  Vandyke's 
lessee,  and  Wharf  v.  Howell,  might  apply.  But  this  is  not  the 
case  here,  for  Thomas  held  as  a  tenant  to  the  defendant  in  error; 


Dec.  1822.]  OF  PENNSYLVANIA.  93 

(Thomas  v.  Wright.) 

a  tenant  who  had  a  lien  for  the  sum  beyond  his  rent  which  he 
had  advanced  in  repairs  ;  he  had  a  right  to  hold  the  possession  until 
he  was  paid.  It  was  the  duty  of  Wright  to  call  on  him  for  his 
account,  and  tender  him  the  balance.  Wright  could  not  throw  up 
the  possession  and  sue  Thomas  for  the  repairs.  The  dissolution  of 
the  demise  depended  on  Wright,  by  giving  notice  to  Thomas,  call- 
ing for^his  account,  and  paying  or  tendering  him  what  was  due  for 
repairs.  But  there  is  another  objection  in  the  way  of  the  judgment. 
If  Thomas  held  the  possession  under  a  contract  with  Wright,  or 
as  his  tenant  for  an  uncertain  time,  then  most  certainly  Wright 
could  bring  no  action  against  him  to  recover  the  possession  without 
notice  to  quit.  He  had  lived  on  under  the  contract  for  several 
years.  It  would  be  then  a  lease  from  year  to  year.  In  either  case, 
a  contractfor  an  indefinite  possession  in  point  of  time,  or  a  holding 
over  which  would  amount  to  a  lease  from  year  to  year,  the  action 
could  not  be  sustained  without  a  notice  to  quit.  It  was,  in  con- 
templation of  law,  a  lease  from  year  to  year,  and  if  it  depended 
on  the  pleasure  of  Wright  to  end  it,  he  must  give  notice  to  quit, 
Bedford  v.  M-llherron,  2  Serg.  fy  Rawle,  50.  And  if  a  lease  be 
for  one  year,  and  the  tenant  is  afterwards  permitted  to  remain  from 
year  to  year,  a  notice  in  the  first  month  of  a  new  year  is  illegal ;  the 
tenant  has  a  right  to  hold  for  that  year,  Fahnestock  v.  Faustenhauer, 
5  Serg.  Sf  Rawle,  174.  The  error  of  the  District  Court  consists  in 
supposing,  that  Thomas  had  but  an  equity,  and  Wright,  the  right 
to  the  possession.  Now  the  court  had  before  stated,  that  Thomas 
stood  in  the  light  of  a  tenant  to  Wright,  and  could  not  set  up 
even  a  good  outstanding  title.  All  this  was  very  just,  but  it  fol- 
lowed that  being  a  tenant,  and  not  allowed  to  set  up  an  outstanding 
title,  he  was  the  legal  tenant,  and  being  subject  to  the  incapacities 
of  a  tenant,  to  controvert  the  title,  he  was  entitled  to  all  the  privi- 
leges of  a  tenant.  This  possession  was  a  legal  one,  and  his  term 
did  not  expire  until  he  had  notice  to  quit.  If  the  plaintiff  had  a  per- 
fect cause  of  action,  against  which  the  defendant  had  no  defence  at 
law,  but  defended  himself  on  the  equity  of  his  case,  all  which  equity 
had  been  removed  since  the  commencement  of  the  action ;  then 
indeed,  the  court,  exercising  Chancery  powers  would  only  inter- 
pose to  prevent  the  plaintiff  from  recovering  costs,  which  would  de- 
pend altogether  on  the  special  circumstances  of  the  case,  on  a  variety 
of  circumstances  peculiar  to  every  case  :  as  here  the  readiness  of 
the  party  where  called  upon  seasonably  to  deliver  up  possession,  on 
payment  of  reasonable  expenditures.  But  as  he  was  not  called 
upon,  nor  any  demand  of  possession  or  offer  to  adjust  the  amount 
due,  I  do  not  feel  the  equity  of  burdening  the  defendant  with  costs. 
See  Hart  v.  the  executors  of  Porter,  5  Sinn.  223.  In  Pennsylva- 
nia, ejectment  is  frequently  made  use  of  to  serve  the  ends  of  a 
bill  in  equity,  and  in  the  exercise  of  the  blended  jurisdiction  of 
law  and  equity,  our  courts  from  necessity  exercise  the  power  by 
directing  a  verdict  on  equitable  terms.  But  here  the  plaintiff 
had  no  right  to  the  possession  in  point  of  law.     The  defendant  had 


94  SUPREME  COURT  [Philadelphia, 

(Thomas  v.  Wright.) 

no  necessity  to  call  on  the  court  to  interpose  their  chancery  powers 
lo  relieve  him  on  some  principle  of  equity  ;  for  if  he  was,  as  they 
considered  him,  a  tenant,  then  until  notice  to  quit  had  been  given, 
and  offer  to  pay  for  the  repairs  beyond  the  rents  had  been  made,  he 
stood  firm  on  legal  grounds. 

Judgment  reversed. 


M'CREADY  and  another,  trustees  of  ENOCH  THOMAS  against 

the  Guardians  of  the  Poor. 


SAME  against  SAME. 

IN  ERROR. 

[Philadelphia,  Dec.  23,  1822.] 

Under  the  domestic  attachment  act  of  4th  December,  1807,  three  trustees  must  he  ap" 

pointed  and  must  qualify,  before  any  can  act:  but  if  one  afterwards  die,  the  sur" 

vivors  may  sue  as  trustees. 
In  an  action  of  trespass   or  trover,  by  two  of  the  trustees,  the  court,  after  verdict, 

will  presume,  that  all  three  were  appointed  and   qualified,  and  that   one   is   since 

dead. 
Where  a  number  of  persons  are  entrusted  with  powers  of  a  general  nature,  and  all 

are  assembled,  a  majority  may  act,  if  regular  notice  has  been  given.     But  where 

a  certain  number  of  trustees  are  by  act  of  assembly  to  be  appointed   and  sworn, 

all  must  be  appointed  and  sworn,  before  a  majority  can  act,  though  the  law  vests 

in  the  majority  all  the  powers  of  the  whole. 
In  trespass  for  mesne  profits,  the  defendant  is  concluded  by  the  recovery  against  him 

in  the  ejectment,  as  to  the  title  of  the  plaintiff. 
Trespass  for  mesne  profits  lies  against  a  corporation. 
The  guardians  of  the  poor  of  the  city  and  districts  are  liable  in  trespass  for  mesne 

profits,  and  in  trover. 

These  were  two  suits  in  the  District  Court,  for  the  city  and 
county  of  Philadelphia,  brought  by  Bernard  MlCready  and  Na- 
than R.  Potts,  trustees  of  Enoch  Thomas,  an  absconding  debtor, 
against  the  guardians  of  the  poor  of  the  city  of  Philadelphia,  dis- 
trict of  Southwark,  and  township  of  the  Northern  Liberties,  removed 
to  this  court  by  writs  of  error,  in  both  of  which  there  were  verdicts 
for  the  plaintiff,  and  the  District  court  entered  judgments  for  the  de- 
fendants. 

The  first  was  an  action  of  trespass  for  mesne  profits  of  a  certain 
lot  of  ground  with  the  buildings.  The  declaration  stated  the  plain- 
tiffs to  be  trustees,  and  was  in  their  names  alone  as  such :  no  men- 
tion being  made  of  any  other  trustee.  The  record  stated  a  verdict 
for  the  plaintiff's  on  the  24th  April,  1821,  subject  to  the  opinion  of 
the  court  on  certain  points  of  law  reserved,  but  these  points  of 
law  were  not  mentioned  ;  and  that  on  the  26th  April,  judgment 
nisi  was  rendered  on  the  verdict.  It  then  proceeded  thus : 
"and  now  27th  April,  1821,  S.  Ewing,  for  the  defendants, 
moves  for  a  rule  to  show  cause,  why  there  should  not  be  a 
new  trial    on  reasons  filed."      On  the  25th  May,    1821,   an   ad- 


Dec.  1822.]  OF  PENNSYLVANIA.  95 

(M'Cready  and  another,  trustees  of  Enoch  Thomas  v.  the  Guardians  of  the 

Poor,  &c.) 

ditional  reason  for  a  new  trial  and  in  arrest  of  judgment  was  filed, 
namely,  "  because  the  suit  was  brought  by  two  trustees  on  a  do- 
mestic attachment,  and  the  suit  cannot  be  maintained  by  two  trus- 
tees." And  on  the  15th  February,  1822,  after  argument,  the  court 
ordered  judgment  to  be  entered  for  the  defendants,  on  the  ground 
stated  in  the  additional  reason  filed  by  the  defendants  on  the  25th 
May,  1821. 

The  other  suit  was  an  action  of  trover,  in  which  the  declaration 
was  in  the  same  form,  and  the  record  after  stating  a  verdict  for 
the  plaintiffs  for  250  dollars,  subject  to  the  opinion  of  the  court  on 
points  reserved,  proceeded  thus:  "And  now,  May  21st,  1821,  S. 
Ewing,  for  the  defendants,  moves  for  a  rule  to  show  cause,  why 
the  verdict  should  not  be  set  aside,  and  a  new  trial  granted, -for 
reasons  filed.  May  22d.  1821,  rule  granted  by  the  court,  to  show 
cause,  why  there  should  not  be  a  new  trial.  Afterwards,  at  the 
District  Court  held  at  Philadelphia,  for  the  city  and  county  of  Phi- 
ladelphia, on  the  15th  February,  1822,  after  argument,  the  court 
order  judgment  to  be  entered  for  the  defendants." 

Randall,  for  the  plaintiff  in  error,  contended,  that  the  only  point 
on  which  it  appeared  from  the  record,  that  the  court  below  entered 
judgment  for  the  defendants,  was,  that  a  majority  of  the  trustees 
of  an  absconding  debtor  could  not  maintain  an  action.  They 
could  not  have  entered  judgment  for  the  defendants  on  the  points 
reserved ;  because  the  proper  course  to  take,  if  they  were  of  opinion 
with  the  defendants  on  these  points,  was  to  grant  a  new  trial. 
Jones  v.  Hughes,  5  Serg.  and  Rawle,  299,  303.  That  a  majority 
of  the  trustees  appointed  under  the  domestic  attachment  act  of  4th 
December,  1807,  may  maintain  a  suit,  and  exercise  all  the  powers 
vested  by  the  act,  is  apparent  from  the  12th  section  of  that  act, 
Purd.  Dig.  35,  which  enacts,  that  a  majority  may  exercise  all  the 
powers  and  perform  the  duties  therein  given  to  and  required  of 
them.  One  of  these  powers,  by  sect.  11,  Purd.  Dig.  33,  is,  to  sue 
for  and  recover  the  estate  of  the  debtor,  and  all  debts  and  things 
in  action  due  or  belonging  to  him.  If  the  omission  of  the  name 
of  another  trustee  were  informal,  the  7th  section  of  the  act  of  4th 
March,  1818,  Purd.  Dig.  28.  cures  the  defect, 

Mahany  and  Scott,  contra. 

If  it  appear  from  the  record,  that  the  plaintiffs  cannot  have 
judgment,  the  court  will  affirm  the  judgment  entered  for  the  de- 
fendants. We  contend  that  two  trustees  as  such  cannot  bring  an 
action,  The  act  of  the  4th  December,  1807,  sect.  3.  Purd.  Dig.  33, 
makes  it  the  duty  of  the  court,  to  appoint  three  persons  to  be  trus- 
tees for  the  creditors,  with  power  to  settle  the  estate,  and  make 
report  to  the  court;  and  they  are  required,  before  they  proceed,  to 
take  an  oath  or  affirmation  to  execute  the  trust.  It  ought  to  appear 
that  three  were  appointed,  and  that  they  were  all  duly  qualified. 
They  are  a  special  tribunal,  and  must  be  legally  organized  before  any 


96  SUPREME  COURT  [Philadelphia, 

(M'Cready    and  another,  trustees   of  Enoch  Thomas  v.   the  Guardians  of  the 

Poor,  &c ) 

of  Ihem  can  act.  They  are  bound  to  pursue  their  powers  strictly. 
Co  *  p.  26.  In  the  case  of  Broad- street  road  continued,  7  Serg.  and 
Rawle,  444,  it  was  held  that  the  whole  twelve  viewers  appointed, 
must  be  sworn,  and  that  if  only  ten  of  them  are  sworn,  and  pro- 
ceed to  act,  their  proceedings  are  irregular  :  and  there  the  act  au- 
thorized any  ten  of  them  to  make  the  view.  So  here,  the  majority, 
if  empowered  to  maintain  actions,  must  mean  a  majority  of  the 
trustees  duly  qualified,  and  it  ought  to  appear  in  the  declaration, 
that  such  was  the  case.  In  the  analogous  case  under  the  insolvent 
law  of  the  26th  March,  1814,  it  is  said  by  the  Chief  Justice,  that 
where  the  court  appoint  two  trustees,  one  has  no  power  to  'act. 
The  bringing  of  an  action  is  the  exercising  of  a  power  which  the 
act  intended  in  the  12th  section,  when  it  authorized  a  majority  to 
act.  It  resembles  the  case  of  executors.  One  executor  may  act ; 
he  may  release  a  debt,  but  he  cannot  bring  an  action.  When  a 
suit  is  referred  to  three,  judgment  to  be  entered  on  the  award  of 
them  or  any  two  of  them,  all  three  must  be  convened. 

But  there  is  a  further  objection  to  the  first  suit.  It  is  an  action 
of  trespass  against  the  defendants  as  a  corporation,  and  trespass 
will  not  lie  against  a  corporation.  Individuals  may  be  liable;  but 
a  corporation  cannot  be  guilty  of  a  tort :  it  cannot  commit  force. 
The  Chesnut  Hill  and  Spring  house  turnpike  company  v.  Rutter,  4 
Serg.  and  Rawle,  6,  was  an  action  of  trespass  on  the  case.  No  re- 
plevin lies  against  them  by  the  name  of  their  corporation.  2.  Bac. 
Ab.  11.  E.  2  cites  Broivnl.  175.  Moreover,  the  defendants  in  these 
suits  are  a  corporation  of  a  peculiar  kind ;  they  hold  no  property, 
but  in  trust  for  the  poor.  They  have  no  fund,  out  of  which  the 
amount  recovered  in  such  actions  is  to  be  defrayed.  They  are 
elected  by  the  corporations  of  their  respective  districts,  to  take  care 
of  and  expend  certain  moneys  in  public  charity.  Those  individuals 
who  have  been  guilty  of  misbehaviour  in  their  capacity  as  guar- 
dians, ought  to  be  compelled  to  pay  for  the  wrong,  and  not  the  corpo- 
rate body,  or  the  public,  who  have  appropriated  no  funds  for  such 
purposes.  In  Riddle  v.  the  Proprietors  of  the  locks  and  canals  on 
Merrimack  river,  7  Mass.  Rep.  the  court  distinguish  between  proper 
aggregate  corporations  and  the  inhabitants  of  any  district  who  are 
by  statute  invested  with  particular  powers  without  their  consent 
called  sometimes,  quasi  corporations,  and  say,  that  no  private  ac- 
tion can  be  maintained  against  the  latter,  for  breach  of  corporate 
duty,  unless  such  action  be  given  by  statute  ;  because  they  have 
no/corporate  fund,  and  no  legal  means  of  obtaining  one.  In  the 
present  case,  the  defendants  have  no  corporate  fund  for  the  purpose 
of  paying  damages  recovered,  nor  means  of  obtaining  one  by  taxes 
or  otherwise,  and  therefore  an  action  for  damages  against  them 
ought  not  to  be  sustained. 

Randall,  in  reply.  The  principle  is  a  general  one,  that  where- 
ever  a  body  is  of  a  public  nature,  a  majority  may  act.     In  a  com- 


Dec.  1822.]  OF  PENNSYLVANIA.  97 

(M'Cready  and  another,  trustees  of  Enoch  Thomas  v.  the  Guardians  of  the 

Poor,  »fec.) 

mission  of  bankruptcy,  a  majority  of  the  commissioners  always  act. 
In  courts,  though  one  judge  dies,  the  rest  proceed  during  the  va- 
cancy. Even  in  this  very  corporation,  who  are  defendants  in  the 
present  case,  a  majority  are  authorized  to  act.  Purd.  Dig.  537. 
sect,  4,  5,  6,  7.  It  was  impossible  for  the  legislature  to  vest  the 
powers  of  the  whole  in  the  majority  by  stronger  language  than  that 
used  in  the  12th  section.  They  "may  exercise  all  the  powers,  and 
perform  all  the  duties,  therein  given  to  and  required  of  them." 
These  words  clearly  embrace  the  right  to  institute  and  maintain  ac- 
tions, without  which  the  estate  of  the  debtor  could  not  be  collected. 
But  if  the  objection  were  available,  the  defendants  were  bound  to 
take  advantage  of  it  by  a  plea  in  abatement.  Pringle  v.  Gaw,  5 
Serg.  Sf  Rawle,  537.  It  is  also  a  sufficient  answer  to  the  objection 
in  the  first  action,  that  it  is  trespass  for  mesne  profits,  and  that  in 
this  action,  the  defendants  are  estopped  to  controvert  the  title.  It 
is  consequential  to  the  ejectment,  and  the  defendant  is  concluded  by 
the  judgment  in  the  ejectment.  Jlslyn  v.  Parkyn,  2  Burr.  666.  Ba- 
ron v.  Abeel,  3  Johns.  481.  As  to  the  objection,  that  trespass  does 
not  lie  against  a  corporation,  it  is  now  well  settled  that  it  does.  In 
the  Chesnut  Hill  and  Spring  house  turnpike  company  v.  Rutter,  4 
Serg.  and  Rawle,  6,  several  cases  of  this  kind  are  cited  by  the 
Chief  Justice  in  delivering  the  opinion  of  the  court ;  and  no  doubt 
seems  to  be  entertained  in  that  case,  that  they  are  liable  generally 
for  torts.  Nor  is  the  corporation  we  have  sued  of  the  nature  of  a 
quasi  corporation,  and  on  that  ground  exempted  from  a  private  ac- 
tion, unless  given  by  statute.  It  is  a  complete  corporation  aggre- 
gate, with  all  the  powers  of  such  a  body,  possessing  funds  of  an 
ample  description,  and  falls  within  the  class  of  corporations  admitted 
by  the  court  in  the  case  from  7  Mass.  Rep.  to  be  liable  to  be  sued. 
It  is  true  there  are  no  funds  specially  appropriated  to  defray  da- 
mages for  trespasses.  Such  an  appropriation  would  be  novel.  But 
there  is  no  reason  in  law  or  justice,  why  they  should  invade  and 
enjoy  the  property  of  individuals,  without  being  obliged  to  make 
retribution. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  This  was  an  action  of  trespass  for  mesne  profits  of 
a  certain  lot  of  ground  with  the  buildings,  brought  by  the  plaintiffs, 
two  of  the  trustees  of  Enoch  Thomas,  an  absconding  debtor,  in 
which  there  was  a  verdict  for  the  plaintiffs,  and  on  the  verdict  the 
District  Court  entered  judgment  for  the  defendants. 

This  court  can  only  examine  and  decide  on  the  record.  A  writ 
of  error  will  not  lie  on  a  point  reserved  for  the  opinion  of  the  court ; 
if  either  party  intends  or  expects  a  writ  of  error,  it  behoves  him  to 
spread  the  facts  on  the  record  before  the  jury  in  a  special  verdict  or 
statement  of  facts  agreed  by  the  parties  to  stand  as  a  special  find- 
ing by  the  jury  ;  and  the  consent  of  parties  cannot  give  this  court 

VOL.  IX.  N 


98  SUPREME  COURT  [Philadelphia, 

(M'Cready   and  another,  trustees  of  Enoch  Thomas  v.  The  Guardians  of  the 

Poor,  &.c.) 

jurisdiction.  But  this  record  neither  states  a  case,  nor  a  point  of 
law  reserved.  On  the  21lh  *flp?'i/,  1821,  a  verdict  was  given  for 
the  plaintiffs,  subject  to  the  opinion  of  the  court,  on  certain  points  of 
Jaw  reserved.  What  these  points  were,  the  record  does  not  inform 
us.  On  this  verdict  on  the  26th  April,  judgment  nisi  was  entered. 
We  must  suppose,  that  the  points  of  law  were  decided  in  favour  of 
the  plaintiffs;  for  the  record  proceeds  thus: — "And  now,  27th 
nSprilj  1821,  S.  Ewing,  for  defendants,  moves  for  a  rule  to  show 
cause,  why  there  should  not  be  a  new  trial  on  reasons  filed  ;"  and 
on  the  25th  May,  1821,  an  additional  reason  for  a  new  trial,  and  in 
arrest  of  judgment,  was  filed,  "because  the  suit  was  brought  by  two 
trustees  in  a  domestic  attachment,  and  the  suit  cannot  be  maintained 
by  two  trustees."  And  on  the  15th  February,  1822,  after  argu- 
ment, the  court  ordered  judgment  to  be  entered  for  the  defendants, 
on  the  grounds  stated  in  the  additional  reason  filed  bv  the  def  n- 
dants  on  the  25th  May,  1821.  The  reason  assigned  for  entering 
judgment  for  the  defendants  is  simply  this  ;  that  two  trustees  cannot 
support  any  action.  If  it  had  appeared  on  the  record,  that  only 
these  two  had  qualified  and  undertaken  the  duties  of  the  appoint- 
ment, and  this  only  could  appear,  as  it  would  be  matter  of  evidence, 
by  bill  of  exceptions  or  opinion  of  the  court,  filed  under  the  act  of 
assembly,  I  should  agree  with  the  District  Court.  But  nnn  constat, 
whether  the  three  trustees  did  not  accept  and  qualify,  that  the 
estate  of  the  absconding  debtor  become  vested  in  them;  and  that  they 
had  taken  possession  of  it,  and  were  disseised  by  the  present  defen- 
dants, and  one  of  them  had  died  ;  and  nan  constat,  but  he  died  after 
verdict  in  ejectment,  on  which  recovery  in  ejectment,  this  action  could 
alone  be  predicated  and  supported,  and  after  a  verdict  such  would 
be  the  presumption  of  law.  There  was  nothing  in  the  objection 
when  made  after  verdict,  where  it  must  be  presumed,  that  all  the 
competent  proof  which  could  be  made  in  support  of  the  action 
was  made. 

A  judgment  is  not  to  be  arrested,  however  defectively  the  title  be 
stated,  if  the  title  itself  does  not  appear  to  be  defective;  in  this  ac- 
tion it  was  not  incumbent  on  the  plaintiffs  to  set  out  their  title;  this 
was  all  matter  of  evidence.  How  they  became  seised,  was  not  a  na- 
tural and  necessary  allegation  in  the  declaration,  though  it  would  be 
a  necessary  part  of  the  proof  on  trial.  In  ejectment  or  trespass,  the 
plaintiff  only  sets  out  that  the  defendants  broke  and  entered  his, 
close ;  he  sets  out  the  close  to  be  his  ;  but  how  his,  he  must  prove  on 
the  trial,  in  ejectment.  On  demise  by  a  corporation,  and  verdict  for 
the  defendants,  it  was  moved  in  arrest  of  judgment,  that  it  did  not 
appear  by  the  record,  that  the  demise  was  by  deed  or  under  seal 
of  the  corporation,  and  it  was  adjudged  it  was  aided  by  the  verdict. 
Patridgey.  Ball,  1  Ld.  Raym.  130.  Carth.  390.  The  record  did 
not  show  a  title  void  in  itself;  its  validity  depended  on  facts  to  be 
proved  in  the  cause,  all  of  which  were  put  in  issue  on  the  plea  of 
not  guilty. 


Dec.  1822.]  OF  PENNSYLVANIA.  99 

(M'Cready  and  another,  trustees  of  Enoch  Thomas  v.  the  Guardians   of  the 

Poor,  &,c.) 

The  domestic  attachment  law  of  4th  Dec.  1807,  Turd.  Dig.  32. 
sect.  3.  provides,  "  that  it  shall  be  the  duty  of  the  court  on  the  re- 
turn of  the  writ,  to  appoint  three  honest  and  discreet  men  to  be 
trustees  to  the  creditors  of  such  absconding  debtor,  with  power  to 
audit  the  accounts  and  adjust  the  demands  of  all  the  defendant's 
creditors,  and  to  settle  the  shares  and  proportions  of  the  defendant's 
estate,  and  make  report  to  the  court ;  and  the  said  trustees  shall, 
before  they  proceed,  take  an  oath  or  affirmation,  to  be  adminis- 
tered by  the  court  appointing  them,  well  and  truly  to  execute  the 
trust  reposed  in  them.''''  The  4th  sect,  provides,  "  that  the  said 
trustees  shall  and  may  take  into  their  possession  all  the  estate  of 
such  debtor,  and  all  books,  vouchers  and  papers  respecting  the 
same,  and  shall  be  deemed  vested  with  the  estate  of  such  debtor, 
at  the  time  of  issuing  the  attachment,  and  shall  be  capable  of  suing 
for  and  recovering  the  same  ;  and  all  the  debts,  &c.  attached,  shall 
be  delivered  over  by  the  sheriff"  to  the  trustees."  The  12th  sect, 
enacts,  "  that  a  majority  of  said  trustees  may  exercise  all  the 
powers  and  perform  all  the  duties  therein  given  to  and  required  of 
them  ;  and  in  case  of  vacancy,  the  court  shall  .supply  the  same  by 
new  appointment  or  appointments."  These  trustees,  though  not 
standing  commissioners  or  a  permanent  body,  and  appointed  only 
for  the  management  of  the  estate  of  the  absconding  debtor,  yet  as  it 
is  a  species  of  public  trust,  as  they  were  trustees  for  the  whole  body 
of  creditors,  to  transact  the  affairs  of  others,  who  have  no  voice 
in  their  appointment,  were  quasi  a  public  body — ministerial 
officers. 

In  all  matters  of  public  concern,  the  voice  of  the  majority  must 
govern.  Whether  the  statute  expressly  authorizes  a  majority  to 
act,  or  is  silent,  the  principle  to  be  extracted  from  the  numerous 
cases  on  this  head,  is,  that  where  a  number  of  persons  are  entrust- 
ed with  powers,  not  of  mere  private  confidence,  but  in  some  re- 
spects of  a  general  nature,  and  all  of  them  are  assembled,  the  ma- 
jority will  conclude  the  minority.  See  Co.  Litt.  185.  To  this 
I  would  add,  if  regular  notice  be  given  to  all,  the  majority,  when 
they  have  met,  become  just  as  competent  to  decide,  as  if  the  whole 
had  met ;  and  in  contemplation  of  law,  it  is  the  act  of  all.  The 
majority  had  power  to  act  by  the  express  terms  of  the  law  ;  but  it 
was  not  a  power  nominatim  to  A.  B.  and  C,  but  to  three  trustees, 
who,  before  they  proceeded,  were  all  to  take  an  oath  to  act  justly, 
and  to  discharge  their  duties  faithfully  to  the  best  of  their  skill ; 
therefore,  the  principles  stated,  does  not  come  up  to  this  question. 
Where  an  act  confers  an  authority  on  three,  and  requires  a  particular 
qualiiication,  making  that  qualification  a  condition  precedent,  it 
seems  to  me,  that  to  give  the  body  a  legal  existence,  it  must  consist 
of  the  required  number,  not  only  to  be  nominated,  but  to  be  quali- 
fied to  act :  that  until  the  whole  number  accept  and  are  qualified, 
it  cannot  be  said,  that  there  are  three  trustees ;  consequently,  where 


100  SUPREME  COURT  [Phikdelphhia, 

(M'Cready  and  another,  trustees  of  Enoch  Thomas  v.  the!  Guardians  of  the 

Poor,  &e.) 

there  are  but  two  who  accept  and  qualify,  they  cannot  be  said  to  be 
a  majority  of  the  trustees  ;  for  the  person  nominated,  but  not  accept- 
ing, cannot  be  called  a  trustee.  The  court  are  to  go  on  to  nominate 
until  the  board  of  trustees  is  filled.  These  men  are  not  judicial 
officers  ;  but  are  ministerial  officers  of  justice.  Until  there  are 
three  trustees  in  office,  the  estate  cannot  vest  in  them.  The  4th 
section  confers  the  possession  of  the  absconding  debtor's  estate  in 
the  three  trustees  ;  and  the  said  trustees,  (that  is  the  three  trustees 
and  not  a  majority  of  them,)  shall  be  deemed  vested  with  the  es- 
tate of  the  debtor — it  is  a  joint  estate.  The  power  is  given  to  the 
majority  to  act ;  but  the  estate  is  vested  in  the  three  jointly.  The 
majority  certainly  have  a  right  to  sue  ;  but  not  in  the  names  of- two, 
if  three  are  in  full  life,  and  continue  trustees.  The  act  of  the  majority 
would  bind  the  dissentient,  and  court  would  not  suffer  him  to  disa- 
vow, discontinue,  or  release  the  action  ;  because  the  act  of  the  ma- 
jority is  the  act  of  the  whole  body  ;  but  if  one  of  them  die,  the  ma- 
jority is  competent  to  sue.  It  may  be  compared  to  the  case  of  ex- 
ecutors, in  whom  the  testator  vests  his  estate,  directing  them  to  sell. 
The  survivor  may  sell,  for  it  is  not  a  vested  authority,  but  an  authority 
coupled  with  the  estate ;  but  a  mere  vested  power  to  executors  to 
sell,  does  not  warrant  a  sale  by  the  survivor  at  the  common  law, 
but  by  act  of  assembly  the  survivor  may  sell  in  both  cases.  If  the 
title  be  deemed  vested  in  the  competent  number  of  qualified  trus- 
tees, and  one  died,  it  could  not  lie  in  nubibus  until  the  vacancy 
was  supplied,  it  must  either  remain  in  the  survivors,  or  be  re- 
mitted to  the  absconding  debtor ;  the  latter  would  be  a  construction 
which  could  never  be  seriously  maintained.  I  go  no  further  than 
the  case  requires — I  speak  only  of  a  suit  brought  by  two,  when  the 
third  has  died,  after  acceptance  of  the  appointment  and  qualifica- 
tion. Nor  do  I  give  any  opinion  as  to  corporate  bodies  or  courts 
of  justice.  If  the  evidence  had  been  set  out,  and  the  opinion  of  the 
court  on  it  filed,  according  to  the  act  of  assembly,  or  bill  of  excep- 
tions stating  the  fact  that  one  had  never  accepted  or  qualified,  that 
there  never  were  three  trustees,  in  a  common  action,  the  court 
would  have  acted  erroneously  if  they  had  not  instructed  the  jury 
that  two  could  not  support  the  action.  But  if  the  whole  evidence 
had  been  spread  on  the  record,  it  is  quite  clear,  that  the  present 
plaintiffs  could  recover  the  mesne  profits;  at  least  from  the  time  of 
bringing  their  ejectment  until  the  recovery  in  ejectment,  for  the  plain- 
tiffs by  producing  the  verdict,  and  judgment  in  ejectment  had  shown 
enough  to  entitle  them  to  recover  some  mesne  profits ;  for  the  pro- 
duction of  that  record  would  have  estopped  the  defendants  in  this  ac- 
tion, (who  took  defence  in  the  ejectment,  for  if  they  were  not  parties  in 
the  ejectment,  there  could  be  no  recovery  in  the  action  for  the  mesne 
profits.)  In  the  action  of  ejectment  formerly  the  damages  were 
given  for  the  mesne  profits ;  indeed  in  the  origin  of  the  action  da- 
mages were  only  recoverable,  (the  term  was  not  recovered  ;)  but  this 


Dec.  1822.]  OF  PENNSYLVANIA.  101 

(M'Cready   and   another,  trustees   of  Enoch  Thomas  v.  the  Guardians    of  the 

Poor,  &.c.) 

has  long-  grown  into  disuse,  and  this  action  is  the  only  one  in  which 
mesne  profits  can  be  recovered,  and  though  the  form  of  proceeding 
in  the  ejectment  be  changed  by  act  of  assembly,  yet  the  remedy  is 
substantially  the  same,  for  the  legislature  have  wisely  given  it  this 
effect  and  no  other,  except  that  two  verdicts  and  judgments  in  eject- 
ment are  conclusive  on  the  right;  for  the  supplement  to  the  original 
act,  13/h  Jipril,  1807,  enacts,  that  it  shall  give  remedy  as  fully 
and  effectually  as  in  ejectments  in  the  form  here! (fare  used. 
This  action  is  consequential  to,  and  results  from  the  ejectment,  it  is 
a  consequence  of  the  recovery  in  ejectment.  Beyond  the  time  of  de- 
mise in  the  old  form,  beyond  the  time  of  action  brought  in  the  new, 
the  recovery  in  ejectment  proves  nothing  at  all,  because  beyond  that 
time  the  plaintiff  alleged  no  title,  nor  could  he  be  put  to  prove  any, 
Jlslin  v.  Parkyn,  2  Burr.  667. 

And  it  is  settled  on  principle,  that  after  a  recovery  in   ejectment, 
the  defendant  is  estopped  from  controverting  the  plaintiff's  title  in  a 
subsequent  action,  provided    the   plaintiff  only  proceeds  for   mesne 
profits  from  the  time  of  the  ouster  complained  of  in  the  ejectment. 
But  if  he  proceeds  for  antecedent  profits  he  must  prove  his  right  to 
the  premises  from  which  they  arose  to  show  his  right  to  recover 
them.    So  that  the  plaintiff's  right  to  recover  something  could  not  be 
questioned.     There   appears  therefore,  on  the  record  no  ground  to 
arrest  the  judgment,  unless  the  last  position  of  the  counsel  of  the 
defendant  in  error  be  tenable.     That  position  is,  that  trespass  vi  et 
armis  will  not  lie  against  any  corporation,  and  that  no  action  will 
lie  against  this  corporation.       To  this   it  may   be  answered,  that 
though  the  action  be  in  form  of  trespass,  yet  it  is  in  effect  to  recover 
rents  and  profits  received  by  the  defendants,  and  in  which  the  actual 
trespass  is  not  required  to  be  proved,  there  being  only  two  objects  of 
nquiry,  length  of  time  and  value  of  the  premises.     But  the  main 
question  was  settled  in  this  court,  in  the  Philadelphia  and  Spring- 
house  Turnpike  Company  against  flutter,  4  Serg.  <£»  Rtnole,  6. 
There  the   Chief  Justice  considered  the  question  very  fully,   and 
proved,  by  a  series  of  authorities,  that  actions  for  torts,  trespasses  on 
land,  trespass  vi  et  armis,  from  the  earliest  ages  of  the  law,  had 
been  supported  against  corporations,  and  incontestably  showed,  that 
there  is  no  solid  ground  for  distinction  between   torts  and  contracts, 
and  there  is  certainly  less  difference  between  trespass  on  the  case 
and  trespass  vi  et  ar??iis,  where  the  shades  of  difference  are  so  in- 
distinct that  it  has  sometimes  puzzled  the  most  acute  counsel  and 
ablest  judges  to  perceive  the  difference,  or  mark  the  distinction  in 
any  plain  intelligible  language. 

It  seems  to  be  admitted  that  if  the  entry  complained  of  was  done 
by  an  agent  of  the  corporation  under  the  corporation  seal  the  action 
could  be  supported.  This,  if  it  were  necessary,  would  be  presumed 
after  a  verdict.  1  do  not  say  that  a  corporation  would  be  responsi- 
ble in  trespass   for  every  outrage  committed  by  their  servants  or 


102  SUPREME  COURT  [Philadelphia, 

M'Cready  and  another,  trustees  of  Enoch  Thomas  v.  the  Guardians   of  the 

Poor,  &.c.) 

agents.  The  act  must  appear  to  be  done  by  their  authority,  not  ex- 
press, but  implied  from  its  own  nature,  in  the  prosecution  of  some 
corporate  claim,  in  the  exercise  of  some  corporate  right,  and  in  such 
case  where  the  act  done  would  be  within  the  scope  of  corporate 
claims,  it  would  not  be  necessary  to  show  the  authority  or  mandate 
under  corporate  seal.  This  body,  if  only  a  corporation  sub  modo 
have  a  capacity  to  sue  and  be  sued  co-extensive  with  their  corpora- 
tion rights  and  duties,  but  they  are  erected  into  a  body  corporate 
and  politic.  By  the  act  of  28th  March,  1803,  Purd.  Dig.  537, 
they  are  declared  to  be  a  body  politic  and  corporate,  and  have 
power  to  take  and  hold  lands,  to  sue  and  implead,  and  are  liable  to 
be  sued  and  impleaded.  From  the  inspection  of  this  record,  it  ap- 
pears, not  only  that  judgment  was  arrested  on  the  plaintiff 's  verdict, 
but  judgment  was  entered  on  that  verdict  for  the  defendants,  and  this 
court  cannot  see  any  cause  for  this.  No  bill  of  exception,  no  special 
finding  of  the  jury,  no  facts  spread  on  the  record,  by  which  it  would 
appear,  that  the  plaintiffs  had  no  cause  of  action,  and  after  a  verdict 
it  must  be  presumed  that  they  gave  evidence  to  support  their  title, 
to  show  a  right  to  recover,  unless  their  own  declaration  shows  a  de- 
fective title,  which  no  evidence  could  support  or  verdict  cure.  As 
this  is  a  writ  of  error  by  the  plaintiffs  below,  and  the  judgment  for 
the  defendants  is  erroneous,  it  is  the  duty  of  the  court  not  only  to  re- 
verse that  judgment,  but  to  give  such  judgment  as  the  District  Court 
ought  to  have  given. 

Judgment  reversed  and  judgment  for  the  plaintiffs. 

In  the  other  cause  the  following  opinion  of  the  court  was   de- 
livered by 

Duncan,  J.  This  case  cannot  be  distinguished  from  the  fore- 
going one  between  the  same  parties,  except  that  it  is  an  action  of 
trover,  and  the  only  question  is,  can  an  action  of  trover  be  main- 
tained against  a  corporation  ?  If  trespass  vi  et  armis  may,  then  a 
fortiori,  trover  can.  If  a  corporation  can  disseise,  and  be  liable  in 
trespass  as  disseisors,  then  doubtless  a  corporation  may  be  guilty  of 
conversion  of  another's  chattels  :  and  if  it  were  necessary,  which  it 
is  not,  to  prove  the  detention  of  the  goods  by  authority  of  (he  corpo- 
ration under  their  seal,  after  verdict,  such  authority  must  be  pre- 
sumed and  the  farther  presumption  may  be  fully  made,  and  it  is 
the  duty  of  the  court  to  make  it  after  verdict  that  all  the  trus- 
tees qualified,  that  these  goods  came  into  their  hands  and  pos- 
session, that  during  the  life  time  of  the  third  trustee  they  were 
converted  by  the  defendants;  consequently,  the  action  could  be 
sustained  by  the  two  survivors,  the  property  being  vested  in  the 
three,  they  would  be  joint  tenants,  and  the  right  of  action  survive 
to  the  majority. 

Judgment  reversed  and  judgment  entered  for  the  plaintiffs. 


Dec.  1822.]  OF  PENNSYLVANIA.  103 

[Philadelphia,  Dec.  23,  1822.] 

WELLS  against  the  Philadelphia  Insurance  Company. 

On  the  23d  of  July,  1819,  A  ,  who  was  going-  out  as  a  supercargo  of  the  ship  Ame. 
rica,  on  a  voyage  from  New  York  to  the  Isle  of  France,  nnd  Calcutta,  and  back,  by 
a  writing,  reciting  that  lie  was  indebted  to  B.  in  251)0  dollars,  engaged  to  ship 
and  consign  to  B.  goods  to  that  amount,  arising  from  his  outward  commissions, 
and  in  case  of  death,  or  any  accident  happening  to  him,  assigned  his  commissions 
on  the  above  voyage,  and  the  proceeds  tiiereof,  to  B.,  and  by  another  writing,  of 
the  same  date,  authorized  B.  to  make  insurance  for  2500  dollars  on  his  commis- 
sions out,  and  the  proceeds  thereof  out  and  home.  On  the  10th  July,  A.  caused 
insurance  to  be  made  in  New  York,  for  4000  dollars,  for  himself  on  commissions 
out  and  home,  and  delivered  the  policy  to  C.  On  the  15lh  August,  B.  had  insu- 
rance made  by  the  defendants,  in  Philadelphia,  for  2500  dollars  on  commissions 
of  A.,  valued  at  the  sum  insured  out,  and  on  the  proceeds  of  said  commissions,  as 
interest  might  appear,  homeward,  with  the  usual  clause  as  to  a  prior  insurance. 
On  the  voyage  home,  the  ship  was  wrecked,  and  A.  drowned  ;  but  B.  received  an 
invoice  and  hill  of  lading  of  goods  consigned  to  him  on  account  of  A.  by  the  ship 
amounting  to  150D  dollars,  some  of  the  goods  were  saved,  and  claimed  and  re- 
ceived by  the  Neio  York  underwriters,  who  paid  part  of  their  policy  on  a  cempro- 
mise  with  C.     Held, 

1.  That  this  was  not  a  case  of  double  insurance,  that  at  New  York,  and  that  at 
Philadelphia  being  on  account  and  for  the  benefit  of  different  persons. 

2.  The  plaintiff-  had  an  insurable  interest. 

3.  He  was  not  bound  to  disclose  to  the  defendant  the  particular  nature  of  his  in- 
terest. 

This  was  an  action  on  a  policy  of  insurance  underwritten  by  the 
defendants,  tried  before  Duxcaiv,  J.  at  JYisi  Prhis,  where  a  verdict 
was  found  for  the  plaintiff,  for  1624  dollars,  36  cents,  and  costs, 
subject  to  the  opinion  of  the  court ;  judgment  for  the  plaintiff,  or 
judgment  of  nonsuit  to  be  entered,  according  to  the  opinion  of  the 
court. 

The  policy  was  dated  15th  August,  1818,  for  2500  dollars,  "  on 
commissions  of  William  A.  Field,  supercargo  of  the  ship  America^ 
valued  at  the  sum  insured  out,  and  on  the  proceeds  of  said  com- 
missions, as  interest  may  appear,  homeicard."  The  voyage  was 
from  JYew  York  to  the  Isle  of  France,  with  liberty  of  the  Isle  of 
Bourbon,  two  ports  in  Java,  and  Calcutta,  and  back  to  a  port  in 
the  United  States.  The  policy,  as  usual  recited,  that  "  Richard 
H.  Wells,  (the  plaintiff,)  as  well  in  his  own  name,  as  for  and  in  the 
name  or  names  of  all  and  every  other  person  or  persons  to  whom 
the  property  insured  did,  might,  or  should  appertain,  in  part  or 
in  whole,  did  make  insurance,  &c."  William  A.  Field  and  Ems- 
lie  Garrigues,  were  joint  supercargoes  of  the  America,  and  Field's 
share  of  the  commissions  for  the  voyage  round,  with  premium  to 
cover,  amounted  to  about  4000  dollars.  Prior  to  the  date  of  the 
policy,  on  the  3d  July,  1818,  Field  by  a  writing  under  his  hand 
and  seal,  reciting  that  he  was  indebted  to  the  plaintiff  in  the  sum  of 
2500  dollars,  engaged  to  ship  goods  to  that  amount,  arising  out  of 
his  outward  commissions  on  this  voyage,  and  to  consign  the  said 
shipment  to  the  plaintiff,  for  the  purpose  of  liquidating  the  said 
debt,     Then  followed  this  clause  :     And  in  case  of  my  death,  or 


104  SUPREME  COURT  [Philadelphia, 

(Wells  v.  the  Philadelphia  Insurance  Company.) 

any  accident  happening  to  me,  I  do  hereby  assign,  transfer,  and  set 
over  to  the  said  Richard  H.  Wells,  my  commissions  on  the  above 
voyage,  and  the  proceeds  thereof,  for  the  purpose  of  liquidating  his 
debt."  And  by  another  writing  of  the  same  date,  Field  authorized 
the  plaintiff*  to  effect  insurance  on  his  own  account  for  2500  dollars 
on  his  commissions,  and  the  proceeds  thereof,  out  and  home,  and 
to  recover  and  receive  the  same  for  his  own  use  in  case  of  loss.  On 
the  10th  July,  181S,  Field  had  insurance  made  at  JVeiv  York,  for 
himself,  by  the  Firemen  Insurance  Company,  in  the  name  of  N. 
G.  Mtnturn  Sf  Co.  for  the  sum  of  4000  dollars  "  on  commissions." 
The  policy  was  open  both  out  and  home.  It  did  not  appear  that  this 
insurance  was  known  to  the  plaintiff.  The  policy  was  left  by  Field 
in  the  hands  of  Archer,  prior  to  his  embarking  in  the  ship  Ame- 
rica, but  was  not  assigned  to  Archer  or  any  other  person.  The  ship 
was  wrecked  near  Sandy  Hook,  on  her  homeward  voyage,  bound 
to  Philadelphia,  in  the  month  of  December,  1819,  and  Field  who 
was  on  board,  was  drowned.  The  plaintiff' received,  under  a  blank 
cover,  unaccompanied  with  any  letter  of  advice,  an  invoice  and  bill 
of  lading  of  goods  shipped  June  20th,  1819,  by  Garrigues  and 
Field,  on  account  and  risk  of  Field,  and  consigned  to  the  plaintiff, 
by  the  ship  America  at  Calcutta  bound  to  Philadelphia ;  amount 
about  1500  dollars.  Some  of  the  goods  were  saved  from  the  wreck 
and  sold ;  the  proceeds  thereof,  (deducting  the  salvage,)  were  paid  to 
the  New  York  Firemen  Insurance  Company,  who  claimed  the 
same  as  underwriters,  on  the  first  policy.  It  was  understood  that 
this  company  paid  part  of  the  sum  insured  by  them  on  a  compro- 
mise without  suit.  The  plaintiff's  claim  was  for  a  total  loss  on 
the  goods  consigned  to  him.  In  this  policy  there  was  the  clause 
usual  here,  that  if  the  said  insured  shall  have  made  any  other  in- 
surance upon  the  premises  aforesaid,  prior  in  date  to  this  policy, 
then  the  insurers  shall  be  answerable  only  for  so  much  as  the  amount 
of  such  prior  insurance  may  be  deficient  towards  fully  covering  the 
premises  hereby  insured,  such  amount  being  understood  to  be  the 
whole  sum  underwritten  without  any  deduction  for  the  insolvency 
of  all  or  any  of  the  underwriters:  and  that  this  policy  so  far  as  the 
same  has  been  previously  insured,  shall  be  considered  null  and  void 
to  all  intents  and  purposes,  and  the  said  Philadelphia  Insurance 
Company  shall  return  the  premium  upon  so  much  of  the  sum  by 
them  insured  as  they  shall  be  by  such  prior  insurance  exonerated 
from :  and  in  case  of  any  insurance  upon  the  said  premises  subse- 
quent in  date  to  this  policy  the  said  Philadelphia  Insurance  Com- 
pany shall  nevertheless  be  answerable  for  the  full  extent  of  the  sum 
by  them  subscribed  hereunto,  without  right  to  claim,  contribution 
from  such  subsequent  insurers,  and  shall  accordingly  be  entitled  to 
retain  the  premium  by  them  received  in  the  same  manner  as  if  no 
such  subsequent  insurance  had  been  made." 

Binney,  for  the  defendants,  contended,  that  it  was  incumbent  on 
the  plaintiffs  to  show  that  the  goods  were  purchased  with  the  pro- 


Dec.  1822.]  OF  PENNSYLVANIA.  105 

(Wells  v.  the  Philadelphia  Insurance  Company.) 

ceeds  of  the  commissions  of  William  A.  Field,  and  there  was  no 
evidence  of  that.  He  then  insisted  on  two  points.  1.  That  here 
was  a  double  insurance,  and  the  latter  one  was  therefore  void.  2. 
That  if  that  were  not  the  case,  the  plaintiff  could  not  recover,  by- 
virtue  of  any  special  contract  he  may  have  made  under  his  agree- 
ment with  Field  on  the  3d  July,  1818,  on  this  policy. 

1.  The  insurance  in  New  York  was  a  prior  insurance,  of  the  same 
interest  and  the  same  risk.  The  subject  insured  there  was  W.  A. 
Field's  commissions  as  supercargo  ;  and  this  covers  goods,  the  pro- 
ceeds of  the  commissions  out,  shipped  home,  though  not  mention- 
ed as  goods.  It  is  the  usage  of  this  trade  for  the  supercargoes  to  re- 
ceive their  commissions  at  the  termination  of  the  outward  voyage, 
and  there  to  invest  them  in  goods  to  be  shipped  home.  In  Hol- 
brook  v.  Brown,  2  Mass.  Rep.  280,  a  policy  was  effected  on  pro- 
perty in  the  brig  Lavinia  ;  the  interest  proved  was  a  right  to  com- 
missions on  arrival.  It  was  held  to  be  covered  by  this  policy. 
The  New  York  insurance  company  have  paid  the  loss  in  this  case, 
which  shows  their  idea  of  the  meaning  of  their  policy.  The  com- 
promise was  made  from  some  difficulty  which  existed  in  proving 
Field's  interest.  It  appears  to  have  been  intended  to  insure  the 
general  property  of  Field  at  the  Philadelphia  office,  and  not  any 
special  interest.  I  grant,  that  if  several  persons  have  several  interests 
in  the  same  property,  they  may  make  several  insurances  :  but  where 
the  same  interest  is  insured  by  two  persons,  it  is  a  double  insurance. 
The  agreement  of  the  3d  July,  1818,  shows,  that  the  commissions 
of  Field  were  to  be  insured,  and  not  Wells'  interest  in  those  com- 
missions. The  defendants,  if  they  are  held  liable,  will  suffer  by 
the  course  which  things  have  taken.  The  New  York  company 
having  made  the  first  insurance,  are  entitled  to  the  salvage  on  the 
goods  which  were  saved.  The  defendants  were,  therefore,  deceived, 
inasmuch  as  they  supposed,  that  by  the  insurance  they  effected, 
they  would  be  entitled  to  the  benefit  of  salvage.  They  contem- 
plated insuring  only  the  general  property  of  Field. 

2.  He  that  intends  to  cover  any  thing  different  from  the  general 
interest,  must  specify  it.  The  plaintiff,  if  he  intended  to  cover  a 
special  or  qualified  interest  under  this  insurance,  was  bound  to  ap- 
prise the  underwriters  of  it,  and  cannot  now  introduce  it  under 
general  words,  which  are  ordinarily  applied  to  a  general  interest. 
Of  this  there  are  various  instances.  An  insurance  on  a  ship  does 
not  cover  a  bottomry  interest :  nor  an  insurance  on  goods  a  respon- 
dentia interest.  Cheriot  v.  Barker,  2  Johns.  346.  Glover  v. 
Black,  3  Burr.  1394.  Bottomry  interest  must  be  insured  eo  no- 
mine. Kenny  v.  Clarkson,  1  Johns.  385.  Robertson  v.  United 
Insurance  Company,  2  Johns.  Cas.  250.  In  Russel  v.  Union  In- 
surance Company,  1  Condy's  Marsh.  105,  4  Dall.  424,  where 
there  was  a  lien,  the  court  said  in  their  charge,  that  the  plaintiffs 
should  have  disclosed  to  the  defendants  the  nature  of  the  interest 
meant  to  be  insured,  to  prevent  a  fraud  upon  the   underwriters, 

VOL  IX.  O 


106  SUPREME  COURT  [Philadelphia, 

(Wells  v.  the  Philadelphia  Insurance  Company.) 

though  it  need  not  to  be  inserted  in  the  policy.  In  Donath  v.  Insu- 
rance Company  of  North  America,  Candy's  Marsh.  311.  note, 
4  Dall.  463,  it  is  held  that  if  a  factor  wishes  to  insure,  he  should 
describe  his  interest :  for  when  he  insured  in  the  name  of  his  princi- 
pal, and  the  goods  having-  been  captured,  were  restored  to  the  prin- 
cipal, the  factor  was  not  allowed  to  abandon  and  recover  of  the  in- 
surers the  amount  of  his  lien. 

C.  J.  Ingersoll,  for  the  plaintiff. 

1.  This  is  by  no  means  the  case  of  a  double  insurance.  A  double 
insurance  is  where  there  are  two  insurances  on  the  same  risk  and 
the  same  interest.  But  these  insurances  were  not  on  the  same  in- 
terest. The  New  York  insurance  was  on  commissions  out  and 
home.  The  Philadelphia  insurance  was  on  commissions  out,  and 
the  proceeds  of  those  commissions  home.  Goods,  the  proceeds  of 
commissions,  are  not  the  same  as  commissions,  and  were  not  covered 
by  the  New  York  policy.  The  New  York  insurers  were  not  en- 
titled to  the  salvage  ;  it  belonged  to  the  Philadelphia  insurers,  who 
were  on  the  goods.  Besides,  if  the  things  be  considered  the  same, 
the  insurances  are  by  different  persons,  on  different  interests  in  it : 
and  the  proviso  only  applies  to  the  same  person's  having  made  a 
prior  insurance.  Two  persons  may  insure  different  interests  in  the 
same  thing,  each  for  the  whole,  Godin  v.  the  London  Assurance 
Company,  1  Burr.  489.  1  Marsh.  150.  Wells'  interest  was 
distinct  from  Field's,  and  as  such  separately  insurable  on  his  ac- 
count. 

2.  There  is  no  necessity  of  a  specification  of  the  particular  kind 
of  interest  belonging  to  the  insured.  The  rule  is  the  other  way,  ex- 
cept in  the  case  of  respondentia,  where,  by  the  custom  of  merchants 
it  has  been  insured  under  that  denomination,  and  therefore  the  court 
would  not  allow  that  it  should  be  insured  under  the  denomination  of 
goods.  G lover  y.  Black,  1  Marsh.  319.  3  Burr.  1394,  anclboltomry 
falls  within  the  exception,  1  Johns.  385.  But  in  Glover  v.  Black, 
Lord  Mansfield  intimates,  that  under  an  insurance  on  goods  at 
large,  a  man  may  be  permitted  to  give  in  evidence  a  mortgage,  or 
other  special  lien,  lb.  Insurance  "on  property  on  board,"  covers 
commissions.  Ho  I  brook  v.  Brown,  2  Muss.  Hep,  280.  3  Mass. 
Rep.  133.  In  Russel  y.  Union  Insurance  Company  a  lien  on 
a  cargo  was  covered  by  an  insurance  on  goods,  4  Dull.  421.  In- 
surance "on  freight  advanced"  was  held  to  embrace  an  interest  in 
the  tonage  of  a  ship  for  a  voyage.  Sansom  v.  Ball,  4  Dull.  459. 
1  Marsh.  117,  a,  note,  Le  Cras  y.  Hughes,  1  Marsh.  108. 
Crawford  y.  Hunter,  lb.  110.  Hill  y.  Secret  an,  lb.  114,  esta- 
blish the  same  principle,  that  the  insured  is  not  tied  down  to  a  spe- 
cification of  his  interest.  In  the  later  case  of  Curruthers  y.  Shed- 
don,  6  Taunt.  14,  1  Serg.  &><  Loiob.  293,  it  was  held,  that  if 
one  of  the  several  partners  insure  goods,  he  may  recover  beyond  his 
share  of  the  goods,  to  the  amount  of  all  advances  made  by  him  tor 


Dec.  1822.]  OF  PENNSYLVANIA.  107 

(Wells  v.  the  Philadelphia  Insurance  Company.) 

the  benefit  of  the  other  partners,  for  which  he  had  a  lien  on  the 
cargo.  Besides,  this  policy  does  not  specify  the  thing  insured  :  the 
insurance  is  for  Wells  on  the  commissions  of  Field.  Here  was  no 
concealment,  but  the  defendants  wTere  told  that  Wells  had  an  in- 
terest in  Field's  commissions.  It  is  objected,  that  it  was  not  proved 
that  these  goods  were  purchased  with  the  proceeds  of  Field's  com- 
missions. But  the  answer  is,  that  the  bill  of  lading  and  invoice 
were  sent  under  a  blank  cover  to  the  plaintiff;  that  Field  had 
agreed  to  consign  the  goods  to  him.  The  goods,  it  is  true,  are 
said  in  the  bill  of  lading  to  be  shipped  by  Field  and  Garrigues,  but 
then  it  is  on  account  and  risk  of  Field. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  The  plaintiff's  claim  is  for  total  loss  on  the 
goods  consigned  to  him,  and  this  claim  is  resisted  by  the  defendants 
on  two  grounds — 1st.  That  there  was  a  double  insurance.  2d. 
That  if  the  plaintiff  sets  up  a  special,  insurable  interest,  in  himself, 
he  ought  to  have  made  it  known  to  the  underwriters  when  he  gave 
the  order  for  insurance. 

1.  The  first  thing  that  strikes  us  in  his  transaction  is,  that  it  is  per- 
fectly fair  on  the  part  of  the  plaintiff.  He  paid  the  premium  which 
was  asked,  on  an  insurance  for  2500  dollars,  and  he  certainly  had 
reason  to  think  that  he  had  an  interest  to  that  amount.  There  was 
no  evidence  of  his  having  had  any  knowledge  of  the  insurance  ef- 
fected by  Field  in  JVeio  York  on  his  own  account,  and  if  so,  and  the 
insurance  made  at  the  office  of  the  defendants  was  for  himself,  there 
is  nothing  in  the  case  like  a  double  insurance.  A  double  insurance, 
is  where  the  same  person  has  insurance  made  on  the  full  value  of 
his  interest,  in  different  policies.  Whether  made  in  his  own  name, 
or  the  name  of  others,  is  immaterial,  so  that  he  is  to  have  the  benefit 
of  both  policies.  Such  would  have  been  the  case,  if  after  insu- 
rance made  in  New  York  on  account  of  Field,  another  insurance 
on  the  same  object  had  been  made  here,  also  on  his  account  in  the 
name  of  the  plaintiff.  But  the  fact  was  otherwise.  The  insurance 
made  by  the  defendants  in  the  name  of  the  plaintiff,  was  intended 
by  the  plaintiff  to  be  for  his  own  benefit.  Whether  he  had  an  in- 
terest which  warranted  an  insurance  for  himself,  is  a  question  to 
be  considered  hereafter.  For  the  present,  it  is  to  be  supposed  that 
he  had,  and  then,  the  insurance  made  at  New  York,  and  that  made 
here,  being  on  account,  and  for  the  benefit  of  different  persons, 
there  was  not  a  double  insurance. 

2.  But  had  the  plaintiff  an  insurable  interest?  There  is  no  dilfi- 
culty  in  answering  that  question.  He  certainly  had.  At  the  time 
of  effecting  the  insurance,  he  had  the  written  engagement  of  Field, 
to  consign  to  him,  goods  to  the  amount  of  the  sum  insured,  which 
were  to  be  purchased  by  Field,  in  India,  with  the  money  to  be  re- 
ceived there,  for  his  commissions.  This  is  the  well  known  course 
of  trade.     The  consignees  received  their  commissions  in  cash,  at  the 


108  SUPREME  COURT  [Philadelphia, 

(Wells  ».  the  Philadelphia  Insurance  Company.) 

end  of  the  outward  voyage,  which  they  invest  in  goods  to  be 
brought  home.  This  is  what  was  meant  by  the  proceeds  of  said 
commissions.  The  plaintiff*  had  not  only  the  covenant  of  Field  to 
consign  the  goods  to  him,  but  in  case  of  his  death,  an  assignment  of 
all  his  commissions  on  the  whole  voyage,  and  the  proceeds  thereof. 
And  it  seems,  Field  was  anxious  to  comply  with  his  engagement. 
For  although  he  embarked  on  the  homeward  voyage,  yet  he  took 
care  to  consign  the  goods  to  the  plaintiff".  The  policy  underwritten 
by  the  defendants  was  valued  on  the  commissions,  out,  and  open  on 
the  proceeds  thereof  home.  It  lay  upon  the  plaintiff  to  prove  the 
amount  of  his  interest  on  the  homeward  voyage,  and  he  did  so. 
He  had  an  interest  in  the  goods  consigned  to  him,  to  their  full 
amount,  for  they  fell  short  of  his  debt.  But  it  is  objected,  (and  that 
is  the  only  point  that  has  had  any  weight  with  me,)  that  he  ought 
to  have  disclosed  to  the  defendants  the  particular  nature  of  his  in- 
terest. This  case  has  been  likened  to  an  insurance  on  a  bottomry, 
or  respondentia  interest,  which  cannot  be  covered  by  an  insurance 
on  goods.  The  law  is  so,  without  doubt,  but  the  cases  are  not 
parallel.  These  are  contracts,  which  in  case  of  loss,  exclude  the 
insurer  from  all  possibility  of  benefit  of  salvage,  and  therefore  he 
ought  not  to  be  drawn  into  them  blindfold.  But  the  interest  of  the 
plaintiff  was  in  the  goods.  The  least  that  can  be  said,  is,  that  he 
had  a  lien  on  them  to  their  full  amount.  In  the  case  of  Carruthers 
v.  Sheddon,  (6  Taunt.  14.)  it  was  decided,  that  where  one  of  several 
partners,  made  insurance  on  goods,  he  might  recover  beyond  his 
share  of  the  goods,  to  the  amount  of  all  advances  made  by  him  for 
the  benefit  of  the  other  partners,  and  for  which  he  had  a  lien  on  the 
cargo.  The  present  policy  was  in  the  name  of  the  plaintiff,  and 
distinctly  pointed  out  the  object  of  insurance,  viz.  FieWs  commis- 
sions out,  and  the  proceeds  of  them  home.  The  defendants  must 
have  known  that  it  was  very  possible  for  the  plaintiff  to  have  an 
interest  in  these  commissions  and  their  proceeds,  and  the  policy 
was  so  drawn  that  there  could  be  no  recovery  without  proof  of  in- 
terest. The  New  York  company  compromised  on  their  policy, 
so  that  nothing  is  to  be  inferred  from  the  payment  made  by  them. 
I  will  only  remark,  that  the  holder  of  that  policy  might  have  found 
some  difficulty  in  recovering  at  law,  as  it  would  have  been  incum- 
bent on  him  to  prove  the  interest  of  Field,  which  might  not  have 
been  so  easy  a  task,  had  the  underwriters  been  fully  apprized  of  all 
that  had  passed  between  Field  and  the  plaintiff.  On  the  whole,  I 
am  of  opinion,  that  the  plaintiff'  is  entitled  to  recover. 


Dec.  1822.]  OF  PENNSYLVANIA.  109 

[Philadelphia,  Dec.  23,  1822.] 

BURD  and  another  against  RAMSAY. 

CASE    STATED. 

Taxes  due  for  seated  lands  are  not  a  lien  on  real  estate,  but  only  a  personal  charge 

against  the  owner  or  occupant. 

The  defendant  was  indebted  to  the  plaintiffs  on  an  assigned  mort- 
gage, dated  the  16th  January,  1812.  Judgment  was  entered  by 
the  plaintiffs  on  the  bond  accompanying  the  mortgage,  on  the  12th 
November,  1817.  On  the  alias  venditioni  thereon,  returnable  to 
December  Term,  1820,  a  sale  was  made  on  the  20th  JYovember, 
1820,  of  the  mortgaged  premises  on  the  following  conditions : 
"  Cash  in  ten  days,  or  the  property  sold  again  at  the  risk  of  the 
purchaser :  all  arrears  of  ground  rent  and  taxes  will  be  paid  out  of 
the  purchase  money,  if  the  bills  thereof  are  brought  to  the  sheriff's 
office  within  ten  days  from  the  time  of  sale,  after  which  the  property 
will  be  accountable."  The  premises  were  purchased  by  the  plain- 
tiffs. The  sale,  exclusive  of  taxes,  after  deducting  costs  and  arrears 
of  ground  rent,  produced  less  than  the  debt  and  interest,  for  which 
the  execution  issued.  A  bill  against  the  defendant  for  the  taxes  of 
the  years  1818  and  1819,  was  presented  to  the  sheriff  by  the  col- 
lector, within  the  ten  days,  which  the  plaintiffs  objected  to  his  pay- 
ing, and  they  gave  verbal  notice  to  the  collector  to  collect  the  taxes 
from  the  premises,  which  was  afterwards  repeated  on  the  21st  De- 
cember, 1820.  A  distress  was  afterwards  made  and  abandoned  by 
the  collector.  The  defendant,  prior  to  the  year  1819,  resided  on 
the  mortgaged  premises,  and  still  resides  there.  The  property  on 
the  premises  had  been  assigned  for  the  benefit  of  creditors,  previous 
to  the  distress. 

The  question  for  the  opinion  of  the  court  is,  whether  the  plain- 
tiffs are  not  entitled  to  take  out  of  court  the  sum  claimed  by  the 
collector  for  taxes,  on  the  ground  that  they  were  not  a  lien  on  the 
premises  sold. 

Gibson,  for  the  plaintiffs,  referred  to  the  7th,  8th,  12th,  15th, 
16th,  18th,  19th,  20th,  21st,  and  23d  sections  of  the  act  11th  April, 
1799,  entitled  "  An  Act  to  raise  and  collect  county  rates  and  levies," 
Purd.  Dig.  100,  to  show  that  the  taxes  were  merely  a  personal 
charge,  and  are  no  where  in  any  part  of  the  act  relating  to  this  sub- 
ject, declared  to  be  a  lien  on  land,  or  treated  as  such.  They  are 
assessed  on  the  person  in  respect  of  property  real  or  personal,  and 
the  remedy  for  their  recovery  is  personal,  by  distress  and  sale  of 
goods,  or  imprisonment  of  the  person  of  the  delinquent,  where  goods 
cannot  be  found. 

There  is  a  lien  created  by  the  act :  but  it  is  on  the  property  of  the 
collector,  and  even  that  is  limited  to  two  years.  The  express  crea- 
tion of  a  lien  in  this  case  shows,  that  the  legislature  did  not  intend 
a  lien  for  the  tax,  or  they  would  have  provided  for  it  in  the  same 


110  SUPREME  COURT  [Philadelphia, 

(Burd  and  another  v.  Ramsay.) 

manner.  Liens  on  land  are  matters  of  positive  enactment ;  they 
are  attended  with  inconveniences  in  many  instances,  and  ought  not 
to  be  implied  on  slight  grounds.  The  great  object  of  the  law  was, 
that  the  taxes  should  be  speedily  collected  ;  within  one  year:  and  if 
they  were  a  lien  until  paid,  it  would  induce  the  collector,  and  all 
concerned  to  relax  in  the  performance  of  their  duty.  Besides,  if 
they  were  a  lien,  there  is  no  mode  by  which  it  can  be  enforced : 
no  proceedings  of  sale  of  lands  can  take  place  by  the  authority  of 
the  collectors.  In  the  case  of  unseated  lands,  which  are  expressly 
subjected  to  sale  for  non-payment  of  taxes,  the  legislature  have  pro- 
vided a  specific  remedy  to  enforce  the  lien :  and  if  they  had  con- 
templated it  in  respect  to  other  real  estate,  they  would  have  care- 
fully established  a  system  by  which  the  title  might  be  transferred, 
and  rendered  secure  to  a  purchaser.  It  is  a  strong  argument  against 
the  lien,  that  in  the  case  of  unseated  lands,  the  law  expressly  pro- 
vides the  lien,  and  gives  a  remedy  for  its  enforcement. 

Binney  and  Rawle,  contra.  The  usage  so  far  back  as  it  can  be 
traced,  has  been  to  treat  the  taxes  as  a  charge  upon  land  ;  and  such 
has  uniformly  been  the  understanding.  When  lands  have  been 
sold  on  a  venditioni  exponas,  the  sheriffs  have  always  paid  the  ar- 
rears of  taxes.  Some  taxes  are  personal  in  their  nature,  or  are  laid 
on  personal  property,  or  in  consequence  of  occupancy:  none  of 
these  ought  to  affect  the  land  :  but  a  tax  on  land  is  very  different :  it 
ought  to  be  considered  as  a  charge  on  land  unless  the  contrary  be 
expressed.  The  remedies  against  the  person  and  goods  are  no 
where  described  in  the  acts  of  assembly  as  exclusive,  and  are  there- 
fore to  be  deemed  additional  remedies  which  exist  with  the  lien. 
The  lien  resembles  that  of  a  mortgage,  which  is  not  impaired  by  the 
existence  of  a  remedy  against  the  person  of  a  mortgagor,  or  the  bond 
accompanying  a  mortgage,  3  P.  Wms.  360.  Great  inconveniences 
to  the  public  will  ensue,  if  the  land  is  considered  not  liable  to  taxes. 
A  great  deal  of  land  belongs  to  absentees,  and  it  would  be  absurd 
to  consider  that  as  a  personal  tax.  Where  the  owner  is  absent  or 
unknown,  the  tax  must  be  laid  on  the  land  or  not  at  all.  The  ques- 
tion whether  there  exists  a  lien,  will  be  determined  by  ascertaining 
whether  the  tax  is  treated  in  the  acts  of  assembly  as  a  charge  on 
the  land  ;  for  if  it  be  a  charge  on  the  land,  then  it  is  a  lien,  in  the 
same  manner  as  the  land  tax  in  England.  Wood/.  Land,  fy  Ten. 
97.  Theed  v.  Starkey,  8  Mod.  314.  Jeffreys'  case,  5  Co.  67.  Rowls 
v.  Gells,  Cowp.  452. 

The  7th  section  of  the  act  11th  April,  1799,  directs  the  com- 
missioners to  require  the  assessors  to  return  the  names  of  all  taxa- 
ble persons,  and  of  all  the  property  made  taxable  by  the  8th  section, 
and  to  proceed  to  quota  the  townships  agreeably  to  the  quantity  and 
quality  of  land  and  other  taxable  property.  The  8th  section  con- 
tains an  enumeration  of  the  articles  made  taxable,  commencing 
with  all  lands  held  by  patent,  &c,  houses  and  lots  of  ground,  and 
ground  rents.      By  section  15,  the  county  commissioners  are  em- 


Dec.  1822.]  OF  PENNSYLVANIA.  Ill 

(Burd  and  another  v.  Ramsay.) 

powered  to  discharge  the  collectors  only  in  the  case  of  mistakes 
or  indigent  persons.     The  16th,  and    19th  give  a  very  summary 
process  against  collectors,  but  the  lien  on  their  lands  is  to  indure 
only  for  two  years.     The  reason  of  this  provision  is,  that  two  years 
are  a  sufficient  time  to  proceed  against  them  to  the  extremity  of 
the  law :  but  as  for  lands  which  are  taxed,  it  would  be  impossible 
in  all  cases  to  collect  the  taxes  within  two  years.     The  25th  sec- 
tion made  the  goods  and  chattels  of  all  tenants  occupying  lands  or 
tenements,  liable  to  be  distrained  for  taxes  arising  out  of  the  same, 
as  though  they  were  the  real  owners,  with  the  right  of  defalcating 
the  tax  with  the  landlord  on  paying  their  rent.     Whence  this  pro- 
vision if  the   tax  on  the  landlord  be  personal  1     The  expressions 
of  this  sction   are  very  strong :   it  speaks  of  "  taxes  arising  out 
of  such  lands  or  tenements."     This  section  was  repealed  by  the  6th 
section  of  the  act  of  3d  April,  1804,  relating  to  the  selling  of  un- 
sealed lands  for  taxes,  Purd.  Dig.  638,  and  every  tenant,  occupy-- 
ing  or  possessing  any  lands  or  tenements,  is  made  liable  to  pay  all 
the  taxes  which,  during  such  occupancy  or  possession,  may  there- 
on become  due  and  payable,  reserving  the  right  to  defalk  or  re- 
cover the  same  against  his  landlord.     They  are  liable  personally: 
but  they  are  liable  only  for  those  taxes  which  accrue  during  their 
own  occupancy :  they  are  not  made  liable  for  those  which  were 
previously  in  arrear.     Besides,  there  are  many  houses  unoccupied 
for  several  years,  the  owners  of  which  live  out  of  the  state.     There 
is  much  real  estate  unoccupied  belonging  to  minors,  and  to  corpo- 
rations.    Transfers  are  often  secretly  made,  and  the  owner  cannot 
be  known.     It   is  clear,  that   unoccupied  lots  in  the  city  of  Phila- 
delphia cannot  be   sold  as  unseated  lands  :   city  lots  are  always 
mentioned  in  the  acts  of  assembly  as  lots.     On  the  28th  March, 
1814,  pamph.  304.  there  was  a  special  act  passed  for  the  sale  of  the 
vacant  lots  in  the  city  of  Philadelphia  for  taxes  in  the  same  manner 
as  unseated  lands,  which  shows  the  construction  given  by  the  le- 
gislature on  that  point.     In  most  of  the  states,  taxes  are  a  lien  on 
land.     Lands  may  be  sold  for  taxes  in  Vermont,  Rhode  Island,  Con- 
necticut, and  New  York.    In  New  Hampshire  improved  lands  are  sold 
for  taxes,  under  certain  circumstances.     Griff.  Ans.  to  Quest.  No.  94. 
In  Massachusetts  a  tax  is  a  lien  on  land,  and  not  a  personal  charge, 
Rising  v.  Granger,  1  Mass.  Rep.  48.     The  difficulty  of  enforcing 
the  lien  is  made  an  objection  to  its  existence :  but  it  is  of  no  weight, 
because  there  are  many  cases  in  which  the  law  establishes  a  lien, 
and  yet  the  party  has  no  remedy  to  enforce  it.     Goods  distrained 
could  not  be  sold  by  the  landlord  at  common  law.     So  also  an  attor- 
ney has  a  lien  on  his  client's  papers  :  an  inkeeperon  the  goods  of  his 
guest :   the  owner  of  a  ship  on  the  goods  carried  for  freight :  and 
these  are  only  a  right  to  hold  till  payment,  but  not  to  sell.     Under 
the  law  originally  passed  to  give  a  lien  to  mechanics,  there  was 
no  remedy  provided  for  the  enforcement  of  the  lien.     The  legisla- 
ture has  considered  the  taxes  as  a  lien.     In  the  2lst  section  of  the 
act  of  11th  April,  1799,  Purd.  Dig.  105,  provision  is  made  to  compel 


112  SUPREME  COURT  [Philadelphia, 

(Burd  and  another  v.  Ramsay.) 

a  sheriff  or  coroner  who  receives  any  money  for  taxes,  to  pay 
over  the  same  to  the  commissioners. 

Condy,  in  reply.  It  is  evident,  on  considering  the  different  acts 
of  assembly  on  this  point,  that  the  legislature  have  distinguished 
lands  subject  to  taxation,  into  two  kinds,  unseated  and  seated :  the 
former  yielding  no  profit,  are  chaiged  with  the  tax,  and  may  be 
sold  for  it.  The  latter  yielding  profit,  are  not  charged  with  the  tax, 
but  the  pernor  of  the  profits  is  liable  to  the  tax.  The  goods  of  the  oc- 
cupier,  though  not  on  the  premises,  are  liable.  The  tax  cannot  be 
deemed  a  lien,  because  a  lien  on  land  is  a  right  to  enter  on  the 
land,  and  to  hold  it  until  the  owner  pays  money.  The  only  lien 
on  land  is  by  mortgage :  a  judgment  is  only  a  charge.  The  collect- 
ors have  no  right  to  enter  on  the  land,  and  take  the  profits.  The 
land,  therefore,  is  not  the  debtor.  A  charge  which  cannot  be  car- 
ried into  effect  amounts  to  nothing.  There  was  an  application  to  the 
legislature  last  winter  for  an  act  of  assembly  to  make  seated  lands 
subject  to  sale  for  taxes :  but  it  was  refused.  The  legislature 
thought  there  were  liens  enough  already.  As  to  the  general  un- 
derstanding on  the  subject,  we  conceive  it  has  always  been  in  Phi- 
ladelphia that  the  taxes  are  no  lien. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  The  question  is  whether  taxes  due  for  seated  lands 
are  a  lien  on  them,  or  only  a  personal  charge  against  the  owner  or 
occupant.  No  lien  is  expressly  created  by  any  of  the  various  acts 
of  assembly  on  the  subject,  and  the  inquiry  will  therefore  be,  whe- 
ther an  intention  to  render  the  taxes  a  charge  on  seated  lands  can 
be  collected  from  any  or  all  of  those  acts,  by  implication.  This 
implication  must  arise,  if  at  all,  from  the  4th  section  of  the  original 
act  (act  of  11th  April,  1799,)  by  which  the  assessors  are  requested 
to  take  an  account  of  the  names  of  the  taxable  inhabitants  within 
their  respective  districts,  and  of  certain  kinds  of  property  made  tax- 
able, among  which  land  is  mentioned,  together  with  almost  every 
sort  of  building,  as  well  as  ground  rents.  There  would  be  little 
doubt  if  the  question  depended  on  this  section  alone;  but  I  shall 
presently  endeavour  to  show  that  it  does  not.  With  respect  to  the 
taxation  of  property,  the  principle  adopted  by  the  legislature,  that 
the  quantum  of  the  assessment  is  to  be  regulated  by  the  quantum 
of  the  property  possessed,  is  a  principle  of  natural  justice,  which 
has,  I  believe,  been  recognised  by  every  legislature  in  the  union; 
and  to  give  full  effect  to  it  in  practice,  it  was  absolutely  necessary 
to  have  returned  along  with  the  name  of  the  taxable  inhabitant,  the 
various  kinds  and  amount  of  the  property  in  respect  of  which  he  was 
to  be  taxed.  This,  and  not  an  intention  to  lay  the  tax  specifically  on 
the  property,  except  in  the  case  of  unseated  lands,  was  the  object  in 
having  any  thing  returned  besides  the  name  of  the  person  to  be  taxed. 
The  tax  can  no  more  be  said  to  be  laid  specifically  on  the  land 
than  on  the  personal  property  returned  ;  and  if  both  real  and  per- 


Dec.  1822. J  OF  PENNSYLVANIA.  113 

(Burd  and  another  v.  Ramsay.) 

sonal  were  specifically  taxed,  each  would  necessarily  be  respective- 
ly liable  in  the  hands  of  the  owner  only  for  what  was  a  charge  on 
it :  yet  the  whole  of  the  personal  property  may  be  distrained,  as 
well  for  what  is  assessed  on  the  land,  as  what  is  assessed  on  it  par- 
ticularly, because  the  whole  is  one  charge.  There  is  then  no  reason 
to  sav  there  is  a  lien  on  the  land,  more  than  on  the  chattels  returned: 
and  with  respect  to  them,  the  existence  of  a  lien  has  never  been  pre- 
tended. 

But  other  provisions  of  this  act  and  of  subsequent  acts  conclu- 
sively show  that  the  legislature  never  thought  of  creating  a  lien. 
By  the  15th  section  of  the  original  act,  the  remedy  is  by  distress  ; 
or  if  personal  property  cannot  be  found,  by  commitment  of  the  body: 
and  by  the  16th  section,  the  collector  is  to  act  in  the  matter  at 
his  peril :  for  if  he  fail  to  pay  the  whole  amount  of  his  duplicate  with- 
in three  months  after  it  has  been  put  into  his  hands,  he  is  to  be 
charged  with  the  balance  unpaid,  a  transcript  of  which  being  filed  in 
the  prothonotary's  office  of  the  proper  county,  is  to  have  the  effect  of 
a  judgment.  And  farther  :  by  the  18th  and  19th  sections,  the  trea- 
surer is  required  to  issue  his  warrant  commanding  the  sheriff"  to 
seize  the  body  and  estate  of  such  delinquent  collector,  on  the  re- 
turn of  which  the  commissioners  are  authorized  to  issue  their  war- 
rant commanding  the  property  to  be  sold.  From  this  it  is  plain 
the  intention  was  that  the  commissioners  should  look  to  the  collec- 
tor alone,  the  whole  amount  of  the  taxes,  with  the  exception  of  al- 
lowances for  mistakes  and  insolvencies,  being  considered,  at  the  end 
of  three  months  from  his  receipt  of  the  corrected  duplicates,  as  actu- 
ally in  his  hands.  In  this  respect,  therefore,  the  commissioners 
have  nothing  to  do  with  the  person  or  property  of  the  taxable  in- 
habitant, the  collection  being  a  matter  exclusively  between  him  and 
the  collector,  who  alone  is  liable  to  the  county.  There  can  be  no 
outstanding  taxes  but  in  the  hands  of  the  collectors  :  and  we  accord- 
ingly find  the  practice  to  credit  them  as  such  on  the  treasurer's 
books,  is  universal.  The  remedy  against  the  collector  is  not  in  ad- 
dition to  a  supposed  remedy  against  the  person  or  property  of  the 
taxable  inhabitant ;  for  by  the  supplementary  act  of  the  2d  of  April, 
1821,  it  was  provided,  that  wherever  the  collector  had  failed  to  col- 
lect the  taxes  within  the  time  prescribed,  he  might  maintain  an  ac- 
tion in  his  own  name  ;  thus  giving  him  a  personal  remedy  for  unpaid 
taxes  as  for  his  proper  debt :  which  is  inconsistent  with  the  notion 
that  the  commissioners  have  a  direct  claim  against  the  taxable  in- 
habitant, and  that  their  remedy  against  the  collector  is  cumulative. 
If  they  ever  had  such  a  claim  it  was  transferred  by  this  act ;  but  the 
truth  is  they  never  had.  The  act  was  passed  for  equitable  reasons; 
to  restore  to  the  collector,  authority  to  use  compulsory  means,  which 
he  had  lost  by  indulgence  beyond  the  period  when  all  authority  to 
proceed  under  his  warrant,  had  ceased.  Under  this  act  therefore 
he  collected  the  tax  as  a  debt  due  not  to  the  county,  but  to  himself, 
and  of  which  he  had  become  the  owner  by  substituting  his  own  lia- 

VOL.  ix.  P 


114  SUPREME  COURT  [Philadelphia, 

(Burd  and  another  v .  Ramsay.) 

bility  for  that  of  the  debtor.  This  act  is  repealed  by  the  supple- 
mentary act  of  the  11th  March,  1822,  which  authorizes  the  collec- 
tors to  proceed  under  their  respective  warrants  at  any  time  within 
three  years  from  the  date  ;  but  without  in  any  respect  impairing*  the 
effect  of  the  16th  and  18th  sections  of  the  act  of  1799,  which  fix  the 
collectors  for  the  amount  of  their  respective  duplicates  to  the  county. 

The  selling  of  lands  for  the  trifling'  amount  of  taxes  usually  due 
on  them,  is  always  attended  with  inconvenience  and  vexation  to  the 
owners,  who  are  often  involved  in  trouble  and  expense,  by  the  sheer 
neglect  of  the  collectors,  who  seldom  make  a  personal  demand. 
This,  and  not  the  amount  to  be  paid,  has  been  the  cause  of  the  re- 
pugnance constantly  evinced  to  acts  of  congress  laying  a  land  tax, 
which  have  always  contained  a  provision  for  the  sale  of  land  itself, 
in  default  of  payment.  Our  state  legislature,  on  the  contrary,  have 
ever  been  guided  by  the  wise  policy  of  not  looking  to  the  land,  in 
that  class  of  cases  which  necessarily  affords  a  reasonable  probability 
of  obtaining  the  tax  from  the  person  or  chattels  of  the  owner.  They 
seem  to  have  supposed  that  on  every  tract  in  actual  occupancy,  suf- 
ficient personal  property  would  be  found,  to  satisfy  the  demand  by 
distress  ;  and  the  very  few  instances  in  which  this  might  not  be  the 
case,  were  thought  too  unimportant  to  merit  special  provision.  By 
the  act  of  the  3d  of  April,  1804,  tenants  in  possession  are  made  lia- 
ble, just  as  if  they  were  the  owners  of  the  land,  with  an  optional 
right  of  recovery,  against  their  landlords,  or  of  defalcation  out  of 
the  rent.  Before  this  time,  the  laws  were  founded  on  a  supposition, 
for  the  most  part  true,  that  the  owners  of  improved  lands  resided  on 
them,  and  in  that  case,  the  taxes  could  be  obtained  by  the  use  of  due 
diligence,  from  their  persons  or  property.  Since  this  act,  however, 
nothing  can  be  lost,  except  in  cases  of  absolute  insolvency ;  and  the 
collector  will  be  entitled  to  an  allowance  on  that  ground. 

It  is  remarkable  that  the  person  and  the  land  are  never  both 
charged  for  money  clue  in  respect  of  the  land.  Purchase  money 
due  the  state  is  a  charge  on  the  land  itself  and  not  on  the  person  of 
the  grantee  ;  and  taxes  on  unseated  lands,  have  never  I  believe  been 
considered  a  charge  on  the  person  of  the  owner,  who  may  abandon 
them  whenever  they  are  not  worth  the  taxes.  There  is  no  other 
means  of  obtaining  taxes  due  on  these,  than  a  sale  under  the  act  of 
assembly.  In  the  case  of  seated  lands,  there  is  no  other  means  than 
distress  of  the  owner,  or  occupant's  chattels,  or  commitment  of  the 
body.  If  the  legislature  had  intended  to  create  a  lien,  they  would 
have  provided  some  direct  means  of  enforcing  it;  and  the  inference 
from  the  want  of  such  a  provision,  is  irresistible.  It  is  altogether 
incredible,  that  they  would  have  trusted  to  the  uncertain  and  impro- 
bable event  of  the  land  being  at  some  period,  sold  by  the  Sheriff, 
and  of  the  purchase  money  being  brought  into  court  for  distribution; 
in  which  case,  only,  the  lien  would  be  availing.  A  lien  without 
retention  of  possession,  or  any  other  means  of  rendering  it  produc- 


Dec.  1822.]  OF  PENNSYLVANIA,  115 

(Burd  and  another  v.  Ramsay.) 

tive,  is  altogether  so  worthless,  as  to  preclude  all  idea  of  its  having 
ever  been  in  the  contemplation  of  any  one. 

I  am  therefore  of  opinion,  that  the  plaintiffs  have  leave  to  take 
the  money  claimed  by  the  collector,  out  of  court. 

Judgment  that  the  plaintiff  have  leave  to  take  out  of  court  the 
money  which  was  claimed  for  taxes. 


'   [Philadelphia,  Dec.  23d,  1822.] 

WALN  against  THOMPSON. 

A  valued  policy  of  insurance  was  made  of  supposed  profits,  on  a  cargo  of  goods,  en 
a  voyage  from  Canton  to  Philadelphia,  free  from  average,  and  without  benefit  of 
salvage.  The  ship  sailed  from  Canton  with  a  cargo,  but  in  consequence  of  bad 
weather,  put  into  the  Isle  of  France  for  repairs;  part  of  the  cargo  was  so  much 
damaged,  that  it  was  thrown  overboard  j  part  being  also  damaged,  was  sold,  and 
the  proceeds  reinvested,  and  these,  with  the  sound  part,  arrived  at  Philadelphia, 
where  it  was  found  that  part  of  those  considered  sound,  were  damaged.  The 
sound  teas  were  sold  at  a  very  considerable  profit,  but  on  the  whole  cargo  there 
was  no  profit :  and  there  was  a  loss  of  more  than  fifty  per  cent,  on  the  whole  goods 
shipped.     Held,  that  the  underwriter  was  discharged. 

This  was  an  action  on  a  policy  of  insurance,  brought  by  WiU 
Ham  Wain  against  Edward  Thompson,  and  was  tried  before  Dun- 
can, J.  at  Nisi  Prius,  when  a  verdict  was  taken  for  the  plaintiff 
subject  to  the  opinion  of  the  Court. 

The  policy  was  declared  to  be,  "  on  supposed  profits  on  a  cargo 
of  goods  in  the  ship  Bengal,  on  a  voyage  from  Canton  to  Phila- 
delphia— warranted  free  from  average,  and  without  benefit  of  sal- 
vage. Amount  valued  at  20,000  dollars."  The  ship  sailed  from 
Canton  the  25th  December,  1815,  with  a  cargo  of  teas,  cassia, 
china,  &c.  On  the  27th  January,  1816,  she  met  with  a  gale  of 
wind,  by  which  she  suffered  considerable  damage,  in  consequence 
of  which,  she  put  into  the  Isle  of  France  for  repairs.  On  a  sur- 
vey, the  whole  cargo  being  unloaded,  part  of  the  teas  was  found  so 
much  damaged,  that  it  was  ordered  to  be  thrown  into  the  sea. 
Another  part  being  damaged,  and  in  a  perishable  state,  was  sold  for 
the  benefit  of  the  concerned,  and  the  proceeds  invested  in  other 
goods,  which,  with  the  sound  part  of  the  cargo,  were  shipped  on 
board  the  Bengal,  who,  after  receiving  the  necessary  repairs,  re- 
sumed her  voyage  to  Philadelphia,  on  the  9th  April,  1816,  and 
arrived  there  the  1st  July  following.  At  Philadelphia,  it  was 
found,  that  part  of  the  teas  taken  on  board  at  the  Isle  of  France, 
as  sound,  was  in  fact  damaged  at  that  time.  The  sound  teas  were 
sold  at  Philadelphia,  at  a  very  considerable  profit,  but  upon  the 
whole  cargo  there  was  no  j>r<<fit,  and  there  was  a  loss  of  more  than 
fifty  per  cent,  on  the  whole  amount  of  the  goods  shipped  at  Canton. 
The  plaintiff  abandoned,  and  claimed  for  a  total  loss. 


11G  SUPREME  COURT  [Philadelphia, 

(Wain  v.  Thompson.) 

J.  R.  Ingersoll  and  C.  I.  Ingersoll,  for  the  plaintiff. 

The  question  is,  whether  there  was  not  in  this  case  a  total  loss  of 
profits,  occasioned  by  perils  of  the  sea,  within  the  meaning  of  the 
policy,  and  of  the  warranty.  There  may  be  an  average  loss  in  an 
insurance  upon  profits,  as  well  as  upon  other  subjects  of  insurance, 
Abbott  v.  Sebor,  3  Johns.  Cas.  39  ;  but  if  there  be  nothing  else  in 
the  case,  the  claim  is  precluded  by  the  warranty.  There  must  be 
a  total  loss,  or  the  plaintiff  cannot  recover.  We  contend,  that  there 
was  such  a  total  loss.  There  was  no  profit  whatever  derived  by 
the  plaintiff* from  the  cargo  shipped :  so  that  it  was,  in  fact,  to  him, 
a  total  loss  of  profits.  The  literal  meaning  of  the  memorandum  is, 
that  if  any  profit  is  made,  though  less  than  20,000  dollars,  the  un- 
derwriter is  discharged:  there  shall  be  no  average.  But  if  there 
be  no  profit  whatever,  the  loss  is  total,  provided  always,  that  the 
loss  is  occasioned  by  a  peril  insured  against.  No  other  sensible 
meaning  can  be  given  to  this  policy ;  there  can  be  no  salvage,  for 
there  is  nothing  to  abandon  when  there  is  no  profit.  A  more  libe- 
ral interpretation  may  be  given  ;  that  if  the  goods  arrive  in  safety, 
although  no  profits  be  made  the  underwriter  is  discharged.  But 
where  all  the  goods  shipped  do  not  arrive,  and  the  profit  that  would 
have  been  made  is  thereby  sunk,  the  underwriter  becomes  respon- 
sible. 

An  insurance  of  profits  on  goods,  partakes  of  the  character  of  an 
insurance  on  goods  :  and  the  rule  is  well  settled,  that  if  the  damage 
amounts  to  fifty  per  cent,  or  more,  it  is  not  an  average,  but  a  total 
loss.  Gardiner  v.  Smith,  1  Johns,  Cas.  141.  In  the  present  case 
the  fact  is  admitted  in  the  argument,  that  there  was  a  loss  of  more 
than  fifty  per  cent,  on  the  goods  shipped  at  Canton :  so  that  it 
falls  within  the  general  rule.  If  less  than  one  half  the  goods  had 
been  lost,  it  would  then  have  been  a  case  of  average,  and  the  war- 
ranty would  have  barred  the  plaintiff's  claim.  If  nothing  is  a  total 
loss  under  this  policy,  but  an  absolute  actual  loss  of  the  whole  car- 
go, then  the  safety  of  a  single  article  would  defeat  the  plaintiff's  re- 
covery. In  Abbott  v.  Sebor,  3  Johns.  Cas.  39,  Kent,  C.  J.  seems 
to  think,  though  he  does  not  expressly  decide  the  point,  that  the 
usual  rule  as  to  ship  and  cargo,  of  a  loss  of  more  or  less  than  one 
half  the  subject,  is  the  criterion  applicable  to  profits,  in  determin- 
ing whether  it  is  a  total  or  average  loss. 

In  policies  on  corn,  and  other  perishable  articles,  it  is  usual  to 
introduce  a  memorandum,  warranting  them  "  free  from  average, 
unless  general,  or  the  ship  be  stranded  ;"  and  they  are  thence 
termed  memorandum  articles.  It  is  true,  the  cases  that  have  arisen 
on  the  words  free  from  average,  in  these  policies,  have  decided, 
that  the  underwriter  is  discharged,  if  there  be  not  an  actual  total 
loss,  though  the  loss  exceed  fifty  per  cent.,  Wilson  v.  Smith,  3 
Burr.  1550.  Mason  v.  Skurry,  Condi/ s  Marsh.  226.  Cocking  v. 
Fraser,  lb.  227.  Dyson  v.  Rowcroft,  3  Bos.  fy  Pull.  474.  Mar- 
cadier  v.  The  Chesapeake  Insurance  Company,  8  Cranch.  39. 
Biays  v.  The   Chesapeake  Insurance    Company,  7    Cranch.  415. 


Dec.  1822.]  OF  PENNSYLVANIA.  117 

(Wain  v.  Thompson.) 

Moreen  v.  The  United  States  Insurance  Company,  1  Wheat. 
219.  But  the  reason  that  governed  the  decision  of  these 
cases  does  not  apply  in  this.  It  was  because  the  articles  were 
easily  deteriorated  by  various  causes,  and  were  of  a  perishable  na- 
ture :  whereas  here  they  are  of  a  different  character,  and  it  is  not  to 
be  supposed,  the  parties  intended  to  use  the  word  average  in  the 
sense  in  which  it  is  applied  to  memorandum  articles,  but  in  that  in 
which  it  is  used  in  construing  insurances  on  ordinary  goods,  or  ves- 
sels, namely,  a  loss  under  fifty  per  cent.  To  this  point  is  the  case 
of  Judah  v.  Randal,  2  Caines1  Cases  in  Error,  324.  A  chariot  was 
insured  to  be  carried  on  deck,  among  other  perils,  against  jettison, 
and  free  from  average :  the  box  estimated  at  two  thirds  of  the  price 
of  the  whole,  was  thrown  overboard  in  a  storm :  the  insured  may 
abandon  for  a  total  loss,  as,  by  the  loss  of  the  box,  the  subject  no 
longer  remained  in  specie. 

At  all  events,  there  was  a  total  loss  of  part  of  this  cargo,  for 
which  the  plaintiff  is  entitled  to  recover.  There  was  an  entire  de- 
struction of  some  of  the  goods,  and  of  course,  of  all  profits  that 
might  have  been  made  of  them.  In  Davy  v.  Milford,  15  East. 
559,  there  was  a  policy  of  insurance  on  flax,  put  up  in  different 
packages,  with  the  warranty  of  free  from  average,  unless  general, 
&c.  Some  of  the  packages  were  sunk  and  totally  lost:  others  were 
partially  damaged.  The  court  decided  that  the  insured  should  re- 
cover for  those  which  were  totally  lost.  In  Hodgson  v.  Glover, 
6  East.  316,  there  was  an  insurance  on  the  profits  of  a  cargo  of 
slaves.  In  consequence  of  tempests,  which  injured  the  ship,  some 
of  the  slaves  were  lost :  the  rest  arrived  safe,  and  were  sold,  but  on 
the  whole,  there  were  no  profit.  The  plaintiff  was  not  allowed  to 
recover ;  but  the  reason  of  the  court  was,  that  he  had  not  shown, 
that  if  all  had  arrived,  there  would  have  been  some  profit. 

A  further  ground  of  claim  is,  that  by  this  policy  the  voyage  from 
Bengal  to  Philadelphia  was  insured:  but  this  voyage  was  not  per- 
formed according  to  the  intent  of  the  policy,  in  consequence  of 
perils  insured  against.  The  entirety  of  the  voyage  was  broken. 
The  ship  and  cargo  did  not  arrive  at  Philadelphia  when  they  ought 
to  have  arrived. 

Binney  and  Hopkinson  for  the  defendant.  It  is  now  well  set- 
tled, that  profits  are  an  interest  capable  of  being  insured  :  though 
such  insurances  are  in  some  countries  forbidden  by  express  ordi- 
nances. They  stand  on  the  same  footing  as  policies  on  other  in- 
terests, and  may  be  subject  to  a  total  or  partial  loss.  Barclay  v. 
Cousins,  2  East.  544.  The  difficulty  of  the  calculations  that  may 
arise,  cannot  affect  the  question  of  interest,  or  the  legality  of  the 
contract.  Eyre  v.  Glover,  16  East.  217.  In  Hodgson  v.  Glover 
6  East.  316,  there  was,  on.  the  whole,  no  profit  from  the  slaves, 
yet  the  court  considered  it  as  an  average  loss  ;  because  it  appeared 
that  a  part  of  the  slaves  got  to  the  market,  and  might  have  yielded 
a  profit  for  aught  that   appeared.     In  Loomis  and  Tillinghast  v. 


118  SUPREME  COURT  [Philadelphia, 

(Wain  v.  Thompson.) 

Sham,  2  Johns.  Cas.  36,  there  was  an  insurance  on  the  profits  of 
goods  on  a  voyage  from  New-York  to  Havre,  and  the  plaintiff*  was 
allowed  to  recover  only  for  an  average  loss  on  three-eighths  of  the 
goods,  though  the  ship  was  captured,  having  accepted  five  eighths 
of  the  goods,  and  appropriated  them  to  his  own  use.  In  Abbot  v. 
Scbor,  3  Johns.  Cas.  39,  it  is  expressly  laid  down  by  Kent,  C.  J., 
that  considering  a  policy  on  profits  as  an  interest  policy,  it  follows, 
that  there  may  be  an  average  loss.  With  respect  to  what  shall  be 
the  criterion  of  an  average  or  total  loss  as  to  profits,  he  merely  sug- 
gests, that,  perhaps,  the  established  rule,  in  respect  to  ship  and  car- 
go, of  a  loss  of  more  or  less  than  half  the  subject  in  value,  may  be 
applicable,  but  expressly  waives  the  decision  of  it.  It  is  said,  in 
one  case  in  New-  York,  Mumford  v.  Hattet,  1  Johns.  433,  that  an  insu- 
rance on  profits  is  ex  necessitate,  a-  valued  policy.  If  so,  it  is  a 
gambling  policy,  and  then  there  can  be  no  recovery  for  an  average 
loss. 

But  the  memorandum  in  this  policy,  warranting  free  from  aver- 
age, and  without  benefit  of  salvage,  was  introduced  for  the  very 
purpose  of  preventing  all  questions  about  average  and  salvage.  It 
is  upon  this  memorandum  the  case  must  be  decided :  and  the  effect 
of  it  is,  that  the  plaintiff  can  recover  only  on  a  loss  total  in  its  nature, 
not  on  a  technical  total  loss,  arising  on  a  damage  of  more  than 
fifty  per  cent.  Throwing  out  of  the  question  that  part  of  the  clause 
relative  to  salvage,  the  meaning  of  the  part  relative  to  average  is 
to  be  ascertained.  Average  means  any  partial  loss,  whatever  may 
be  its  extent.  All  damage  short  of  destruction  is  average.  The 
insured  may  consider  it  as  average,  though  it  exceed  fifty  per  cent. 
"  A  partial  loss,"  says  Sergeant  Marshall,  "  is  any  loss  or  damage, 
short  of,  or  not  amounting  to  a  total  loss.  If  a  ship  arrive,  however 
great  the  injury  done  to  her  may  be:  if  goods  specifically  remain, 
however  damaged,  unless  they  are  rendered  of  no  value,  and  alto- 
gether useless,  it  is  a  partial  loss."  "  Partial  losses  are  sometimes  de- 
nominated average  losses,  &c."  2  Condy^s  Marsh.  486.  In  speak- 
ing of  the  right  of  abandoning,  the  same  book  quotes  Le  Guidon, 
where  it  is  laid  down,  that  the  insured  may  abandon,  where  there 
is  an  average  loss  or  damage,  which  exceeds  half  the  value  of  the  goods 
insured,  &c.  lb.  563.  Which  shows  that  such  loss  is  i-eally  an 
average  loss  in  strict  language,  though  at  other  times,  called  a 
technical  total  loss,  if  the  insured  choose  so  to  consider  it. 

In  Fitzgerald  v.  Pole,  5  Br.  Pari.  Ca.  131.  Willes,  641,  Oil. 
2  Condy's  Marsh,  585,  these  words,  free  from  average,  were  con- 
sidered :  and  the  House  of  Lords  were  of  opinion,  with  the  majority 
of  the  Judges,  that  the  insured,  being  by  the  terms  of  the  policy,  free 
from  all  average,  the  plaintiff  could  not  be  entitled  to  recover,  but 
in  case  of  a  total  loss.  In  the  case  of  perishable  articles,  these  words 
have  received  a  settled  construction,  that  the  insured  cannot  convert 
a  partial  into  a  total  loss  by  election,  and  that  a  total  loss  can  never 
happen,  where  the  subject  insured,  or  a  part  of  it,  has  reached  the 
original  port  of  destination,  though  the  loss  sustained  in  the  whole 


Dec.  1822.]  OF  PENNSYLVANIA.  119 

(Wain  v.  Thompson.) 

exceeds  fifty  per  cent.  Maggrath  v.  Church,  1  Caines,  196. 
Nelson  v.  The  Columbia  Insurance  Company,  3  Caines,  108. 
Moreen  v.  The  United  States  Insurance  Company,  1  Wheat.  219. 
Biays  v.  The  Chesapeake  Insurance  Company,  7  Crunch.  415. 
Anderson  v.  The  Royal  Exchange  Assurance  Company.  Wilson 
v.  The  same,  2  Campb.  623.  Thompson  v.  The  same,  16  East. 
213.  Glennie.  v.  7%e  London  Assurance  Company,  2  Maule  fy 
Set.  371.  In  bottomry  and  respondentia,  where  there  is  no  ave- 
rage, in  the  English  law,  nothing  short  of  a  total  loss  will  discharge 
the  borrower ;  the  obligation  remains,  however  the  thing  may  be 
damaged  by  the  perils  of  the  sea.  2  Marsh.  754.  Though  in 
Philadelphia,  by  an  express  clause  in  the  policy,  the  lender  is 
liable  to  average.  Gibson  v.  The  Philadelphia  Insurance  Company, 
1  Binn.  405.  It  is  true,  there  is  a  difference  in  the  articles  em- 
braced in  this  policy,  and  memorandum  articles ;  but  the  parties 
may  introduce  what  articles  they  please,  and  the  construction 
must  remain  the  same,  without  regard  to  the  nature  of  the  article. 
That  construction  has  been  so  well  settled,  that  it  must  be  con- 
sidered to  have  been  in  the  view  of  the  parties,  in  using  similar 
language. 

It  is  said  there  was  a  total  loss  of  part  of  the  cargo.  The  case 
of  Davy  v.  Milford,  15  East.  559,  sets  up  a  new  doctrine  :  but  it  is 
in  direct  contradiction  to  Biays  v.  The  Chesapeake  Insurance 
Company,  7  Cranch.  415;  and  Moreen  v.  The  United  States  In- 
surance Company,  1  Wheat.  219.  It  is  further  alleged,  that  though 
some  of  the  goods  arrived  safe  yet  the  voyage  was  lost.  That 
temporary  interruption  is  no  loss  of  the  voyage.  Manheim  v.  New- 
7nan,  2  Marsh.  586.     Anderson  v.  Wallis,  1  Maule  Sf  Sel.  240. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.,  (after  stating  the  case.)  It  was  contended  by 
the  counsel  for  the  plaintiff,  in  the  first  place,  that  there  was  a  total 
loss  of  the  voyage  by  the  very  great  interruption,  and  delay,  which 
took  place,  in  consequence  of  the  damage  at  sea,  which  obliged  the 
ship  to  put  into  the  Isle  of  France.  But  this  argument  is  not  sus- 
tainable— the  interruption  of  a  voyage,  is  not  the  loss  of  it.  The 
insurers  engage  that  the  voyage  shall  be  accomplished,  but  not  in 
any  particular  time.  The  ship  is  to  be  repaired  at  their  expense, 
and  then  to  prosecute  her  voyage.  She  did  so  in  this  instance,  and 
arrived  safe  at  the  port  of  destination.  If  it  were  necessary  to  cite 
authority  on  this  point,  I  might  refer  to  the  case  of  Anderson,  §'c. 
v.  Wallis,  2  M.  fy  S.  240,  which  is  much  stronger  than  the  one 
now  under  consideration.  In  that  case,  the  voyage  insured,  was 
from  London  to  Quebec,  and  the  ship,  having  reached  the  banks  of 
Newfoundland  was  obliged  to  put  back,  and  made  a  port  in  Ire- 
land. There  she  was  repaired,  but  the  season  was  so  far  advanced, 
that  the  voyage  to  Quebec  could  not  be  prosecuted  till  the  next 


120  SUPREME  COURT  [Philadelphia, 

(Wain  v.  Thompson.) 

year.  Still  it  was  held  that  the  voyage  was  not  lost.  But  the  dif- 
ficulty in  the  present  case  arises  on  the  plaintiff's  second  point, 
which  is,  that  the  loss  was  total,  because  it  exceeded  fifty  per  cent. 
In  general  that  is  the  rule.  If  goods  are  damaged  to  the  amount 
of  more  than  fifty  per  cent,  the  insured  may  abandon,  and  claim  for 
a  total  loss.  But  this  is  an  insurance  on  profits,  and  by  the  express 
agreement,  the  defendant  is  to  be  free  from  all  average  loss,  and 
to  have  no  benefit  of  salvage.  This  a  very  important  part  of  the 
contract.  The  case  turns  on  it.  There  can  be  but  two  kinds  of 
loss ;  total  and  partial,  (commonly  called  average.)  Every  loss,  less 
than  total,  must  be  partial  however  great  its  amount.  That  kind 
of  total  loss  which  arises  from  damage,  to  an  amount  greater  than 
fifty  per  cent.,  is  merely  technical.  It  is,  in  truth,  as  much  a  pai'- 
tial  loss,  as  if  the  damage  were  only  five  per  cent.  And  although 
the  rule  has  been  adopted  for  convenience,  yet  it  is  at  the  option  of 
the  assured,  to  waive  it ;  he  may  abandon,  and  claim  for  a  total  loss, 
or  decline  an  abandonment,  and  recover  according  to  his  actual  loss, 
be  it  what  it  may.  The  question  is  then,  whether,  when  the  in- 
sured discharges  the  insurer  from  all  average  loss,  he  does  not  dis- 
charge him  from  all  loss  which  may  be  properly  called  average, 
without  regard  to  its  amount.  Although  this  is  an  insurance  on 
profits,  yet  it  partakes  something  of  the  nature  of  an  insurance  on  the 
goods  from  which  the  profits  are  to  arise.  The  profits  are  valued 
at  20,000  dollars.  Yet  it  cannot  be  considered  as  an  undertaking 
that  the  insured  shall  in  all  events  make  profits  to  that  amount.  If 
the  cargo  had  arrived  in  good  condition,  at  Philadelphia,  the  under- 
writers would  have  been  discharged,  though  it  had  sold  at  a  loss. 
In  order,  therefore,  to  ascertain  the  meaning  of  this  expression, 
"free  from  average,"  it  will  be  important  to  inquire  whether  it 
has  been  used,  and  acquired  a  definite  signification,  in  insurances 
upon  goods.  And  we  find  that  it  has.  In  almost  every  policy, 
the  words,  "free  from  average,  except  general"  are  applied,  in  a 
memorandum,  to  certain  articles,  (thence  called  memorandum  ar- 
ticles,) which  by  nature,  are  apt  to  be  deteriorated  from  other 
causes,  than  perils  of  the  sea.  Concerning  the  meaning  of  those 
words,  there  have  been  frequent  disputes.  I  shall  mention  some 
of  the  cases,  from  which  it  will  appear,  that  it  is  now  well  set- 
tled, that  although  the  memorandum  articles  are  damaged  to  a 
greater  amount  than  fifty  per  cent.,  the  insurer  is  not  liable,  be- 
cause the  loss  is  but  partial.  In  Wilson  v.  Smith,  3  Burr,  1550, 
the  goods  were  damaged  more  than  fifty  per  cent.,  yet  the  un- 
derwriters were  held  not  liable.  Anderson  v.  The  Royal  Ex- 
change Assurance  Company,  (7  East.  38)  was  a  stronger  case ; 
the  ship  was  stranded,  and  the  goods  remained  some  time  un- 
der water,  during  which  the  insured  might  have  abandoned,  be- 
cause the  loss  was  total ;  but  having  waited  till  they  were  re- 
covered from  the  water,  although  very  much  damaged,  and  then 
abandoned,  it  was  held  that  he  was  too  late,  and  the  insurer 


Dec.  1822.]  OF  PENNSYLVANIA.  121 

(Wain  v.  Thompson.) 

were  discharged,  because  the  loss  though  great,  was  but  partial. 
The  same  law  is  to  be  found  in  16  East.  214.  Thompson  v. 
The  Royal  Assurance  Company,  and  in  Glamie  v.  The  London 
Insurance  Company ',  (2  M.  Sf  S.  371,)  and  Wilson  v.  The  Royal 
Exchange  Insurance  Company,  (2  Camp.  623.)  The  courts  of 
the  United  States  have  held  the  same  principle  as  appears  in  Mar- 
cardier  v.  The  Chesapeake  Insurance  Company,  (8th  Cranch. 
39.)  and  in  Biays  v.  The  Chesapeake  Insurance  Company,  (7 
Cranch.  415.)  also  in  Moreen  v.  The  United  States  Insurance 
Company,  (1  Wheat.  219.)  From  all  these  authorities,  it  is 
quite  clear,  that  in  an  assurance  on  goods  ll  warranted  free  from 
average  unless  general,''''  the  insured  cannot  recover  for  any  par- 
tial loss,  though  exceeding  fifty  per  cent.  But  this  is  an  insurance 
on  profits.  When  first  this  kind  of  insurance  was  introduced  its 
legality  was  questioned.  But  although  it  is  in  its  nature  productive 
of  difficult  questions,  and  therefore  forbidden  by  the  laws  of  several 
countries  in  Europe,  yet  its  legality  is  not  now  to  be  questioned 
here,  having  been  long  ago  firmly  established.  The  disputes  which 
spring  from  it,  are  not  always  easy  to  be  comprehended  ;  yet  we  may 
understand  without  difficulty  that  there  may  be  a  partial  loss  of 
profits  by  an  absolute  loss  of  part  of  the  goods  from  which  the  profits 
were  expected  to  arise,  or  from  damage  sustained  by  part  of  the 
goods  or  all  of  them.  In  the  case  of  Hodgson  v.  Glover,  (6  East. 
316,)  there  was  an  insurance  on  profits  of  a  cargo  of  slaves.  The 
ship  was  injured  by  tempests,  in  which  some  of  the  slaves  were  lost, 
the  rest  arrived  safe  and  were  sold  ;  but  upon  the  whole  there  were 
no  profits  and  the  insured  claimed  for  a  total  loss.  The  plaintiff 
did  not  recover,  for  a  reason  not  applicable  to  the  case  before  us, 
but  both  Lawrence  and  Le  Blanc,  Justices,  in  delivering  their 
opinions,  remarked,  that  it  was  clearly  only  an  average  loss.  In 
this  present  case,  the  teas  which  arrived  in  good  condition,  were 
sold  at  great  profit,  although  upon  the  whole  adventure  there  wras  a 
loss.  In  that  respect,  it  resembles  the  case  of  Hodgson  v.  Glover, 
and  both  cases  are  alike  in  another  circumstance,  viz.  that  the  pro- 
fits were  valued  at  the  sum  insured.  Taking  for  granted  then,  that 
whatever  loss  was  suffered  in  the  present  case,  was  but  partial, 
how  is  the  plaintiff  to  recover  against  his  warranty,  free  from  aver- 
age ?  And  what  reason  can  be  assigned  for  giving  these  words  a 
different  construction  when  applied  to  profits,  from  that  which  has 
been  established  when  applied  to  goods  9  Ought  we  not  rather 
to  suppose,  that  the  construction  which  had  been  applied  to  goods, 
long  before  insurances  on  profits  were  introduced,  was  understood 
by  both  parties,  and  intended  to  be  adopted,  when  an  insurance  on 
profits  was  first  made  ?  In  both  instances  the  warranty  in  question 
appears  to  have  been  introduced  for  the  purpose  of  avoiding  all  dis- 
pute upon  a  subject  capable  of  producing  dispute,  and  that  too  of 
a  difficult  na'ure.  I  am  therefore  of  opinion,  that  in  both  cases 
there  should  be  the  same  construction. 

VOL.  IX.  Q 


m  SUPREME  COURT  [Philadelphia, 

(Wain  ».  Thompson.) 

.  There  was  another  question  raised  by  the  plaintiff's  counsel, 
which  remains  to  be  considered.  Some  of  the  teas  were  totally 
lost.  Is  he  entitled  to  recover  for  loss  of  profits  on  them  ?  It  is 
contended  that  he  should  recover,  because  in  such  case,  if  the  in- 
surance had  been  on  goods,  he  would  have  recovered.  For  this 
the  case  of  Davy  v.  Milford,  (15  East.  559)  is  relied  on.  That 
was  an  insurance  on  flax,  put  up  in  different  packages,  warranted 
free  from  average,  except  general.  Some  of  the  packages  were 
sunk  and  totally  lost ;  others  were  partially  injured.  The  Court  of 
King's  Bench  held,  that  for  those  which  were  totally  lost,  the  in- 
sured was  entitled  to  recover.  This  is  the  only  English  case  in 
support  of  that  position,  and  it  is  in  direct  contradiction  to  the  case 
of  Biays  v.  The  Chesapeake  Insurance  Company,  (7  Crunch.  415.) 
That  was  an  insurance  on  a  cargo  of  hides,  warranted  free  from 
average,  except  general.  Some  of  the  hides  were  sunk  and  totally 
lost,  and  the  question  was,  whether  the  plaintiff  could  recover  for 
them.  The  court,  on  full  consideration,  decided,  that  he  could  not 
recover ;  because  those  hides,  being  part  of  the  cargo,  the  loss,  on 
the  whole,  was  but  partial,  although  part  was  totally  destroyed. 
The  decisions  of  the  Supreme  Court  of  the  United  States  have  no 
obligatory  authority  over  this  court,  except  in  cases  growing  out  of 
the  constitution,  of  which  this  is  not  one.  Yet  so  great  is  the  im- 
portance of  preserving  uniformity  of  commercial  law,  throughout  the 
United  States  ;  and  so  great  the  respect  which  I  feel  for  the  highest 
tribunal  in  the  union,  that  I  shall  always  be  inclined  to  adopt  its 
opinions,  rather  than  those  of  any  foreign  court,  unless  when  I  am 
well  satisfied  it  is  in  the  wrong.  That  is  more  than  I  can  say  on 
the  present  occasion  ;  for  whoever  examines  the  reports  of  the  two 
cases  I  have  referred  to,  will  perceive,  that  the  question  underwent 
more  discussion,  and  was  decided  after  more  deliberate  considera- 
tion, in  our  own  country,  than  in  England.  I  think,  it  will  be  per- 
ceived, that  the  principle  set  up  by  the  English  court,  although 
recommended  at  first  view,  by  an  appearance  of  equity,  will  have  a 
tendency  to  introduce  some  of  those  very  disputes  and  difficulties, 
which  it  was  the  object  of  this  warranty  to  prevent.  Upon  the 
whole,  it  is  my  opinion,  that  the  plaintiff,  having  proved  only  an 
average  loss,  and  having  warranted  against  all  average  losses,  is  not 
entitled  to  recover. 


Dec.  1822.]  OF  PENNSYLVANIA.  123 

[Philadelphia,  Dec.  30,  1822.] 

SCOTT  and  others  against  MORRIS  and  another,  assignees  of 
HUMPHREYS  and  another. 

CASE    STATED. 

If  creditors  release,  under  an  assignment  by  the  debtor  in  trust  to  pay  tlieir  respec- 
tive demands  in  full,  the  surplus  to  go  to  the  debtor,  and  the  fund  prove  suffi- 
cient to  pay  the  whole  debt  and  part  of  the  interest  up  to  the  payment  of  fie 
last  d.vidend,  they  are  entitled  to  receive  such  interest. 

An    amicable   action  was    entered    by    Thomas   Scott,   George 
Trotter,    and  John    Tilford,    against    George   Morris    and    Benja- 
min   Sharpnack,    assignees  of  John   Humphreys   and   Durdon  B. 
Carter,  lately  trading  under  the  firm  of  Humphreys  and  Carter   and 
a  case  was  stated  for  the  opinion  of  the  court. 

In  March,  1817,  Humphreys  and  Carter  made  an  assignment  to 
Morris  and  Sharpnack,  in  trust.  1st.  To  pay  all  the  persons  to 
whom  they  were  indebted  for  money  lent,  or  by  reason  of  the  in- 
dorsement of  their  promissory  notes,  or  by  a  loan  or  exchange  of 
their  notes  for  the  accommodation  of  the  said  Humphreys  and 
Carter,  the  amount  of  their  respective  demands  in  full.  2dly.  To 
pay  all  other  creditors  of  the  said  Humphreys  and  Carter  the 
amount  of  their  respective  demands  in  full,  if  the  moneys  remaining 
should  be  sufficient :  but  if  not  sufficient,  then  a  rateable  proportion 
of  the  moneys  remaining  after  the  payment  of  the  first  class.  3dly. 
To  pay  the  snrplus,  if  any,  to  the  said  Humphreys  and  Carter, 
their  executors,  administrators,  or  assigns  :  provided,  that  no  credi- 
tor or  creditors  should  be  entitled  to  any  payment  or  dividend,  un- 
less he  or  they  on  or  before  the  2d  June,  1817,  executed  a  full  and 
effectual  release  of  his  or  their  demands  against  Humphreys  and 
Carter,  and  each  of  them.  On  the  12th  May,  1817,  the  plaintiffs, 
and  other  creditors  of  the  first  class,  executed  releases  conformably 
to  the  condition,  and  the  assignees  had  paid  them  the  entire  princi- 
pal of  their  debts,  but  declined  paying  any  interest  upon  them, 
though  they  had  in  their  hands  sufficient  funds  to  pay  43  per  cent, 
of  the  interest,  calculating  up  to  the  time  of  paying  the  last  divi- 
dend. The  question  submitted  to  the  court  was,  whether  the 
assignees  were  bound  to  pay  to  these  creditors  the  amount  of  inte- 
rest in  their  hands. 

Duane,  for  the  plaintiffs.  The  provision  in  this  assignment  cm- 
braces  the  respective  demands  of  the  creditors  in  full,  and  these 
words  include  interest  as  well  as  principal.  Interest  follows  the 
principal  as  a  necessary  consequence.  The  creditors  released  on 
condition  of  receiving  their  whole  debts,  and  they  would  lose  a 
part  of  what  is  due  to  them,  if  they  should  lose  the  interest.  No- 
thing but  an  inadequacy  of  funds  can  subject  them  to  this  loss.  If 
the  creditors  do  not  receive  it,  it  must  by  the  assignment  return  to 
the  debtor.    As  between  the  debtor  and  the  creditors,  there  can  be 


124  SUPREME  COURT  [Philadelphia, 

(£cott  and  others  v.  Morris  and  another,  assignees  of  Humphreys  and  another.) 

no  question,  but  the  creditors  are  entitled  to  the  amount  of  the  in- 
terest. 

Chauncy,  contra,  contended,  that  under  the  words  requiring  the 
assignees  to  pay  "  their  respective  demands  in  full "  the  creditors 
were  not  entitled  to  interest  in  the  event  that  had  happened.  De- 
mands, as  used  here,  signify  demands  at  the  date  of  the  assignment. 
Besides,  the  plaintiffs  have  executed  a  release  of  all  demands,  by 
which  their  claim  to  interest  is  extinguished.  The  general  rule  in 
bankruptcy  is  for  the  commissioners  to  compute  interest  upon  debts 
no  lower  than  the  date  of  the  commission,  because  it  is  a  dead  fund: 
and  there  is  no  direction  in  the  act  for  that  purpose.  Cook's  B.  L. 
4th  ed.  181.  Interest  is  allowed  on  a  note  only  where  it  specifi- 
cally carries  interest,  lb.  182.  It  is  true  where  there  is  a  surplus, 
creditors  are  allowed  interest  from  the  date  of  the  commission,  in 
preference  to  the  bankrupt,  lb.  535.  The  Chancellor,  however, 
possesses  large  equitable  powers  in  bankruptcy,  which  this  court 
would  not  pretend  to  exercise  over  the  funds  in  the  hands  of 
assignees. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  cause  comes  before  us  on  a  case  stated 
to  which  I  refer. 

The  trust,  in  the  deed  of  assignment,  under  which  the  plaintiffs 
claim,  is,  that  the  defendants  will  in  the  first  place,  pay  to  the  cre- 
ditors of  the  first  class  (to  which  the  plaintiffs  belong)  "  the  amount 
of  their  respective  demands  in  full.*9  The  word  demand  is  very 
comprehensive.  It  includes  every  thing  which  the  creditors 
would  have  been  entitled  to  recover  by  suit.  And  there  is  no 
doubt,  that  interest  might  have  been  recovered,  as  well  as  princi- 
pal. Consider  the  nature  of  the  debts  to  which  the  first  class  was 
restricted  ;  "  debts  due  for  money  lent  to  Humphreys  and  Carter, 
or  by  reason  of  the  indorsement  of  their  promissory  notes,  or  by 
a  loan,  or  exchange  notes,  for  their  accommodation."  In  all 
these  cases  the  creditor  would  have  had  to  pay  his  own  money  for 
the  benefit  of  Humphreys  and  Carter,  and  nothing  can  be  more 
reasonable  than  to  allow  him  interest,  from  the  time  of  payment. 
Consider  also,  what  is  to  become  of  the  surplus  in  the  hands  of  the 
assignees,  after  the  payment  of  all  demands.  It  is  to  go  to  Hum- 
phreys and  Carter.  Now  surely,  it  could  not  have  been  intended, 
that  the  creditors  should  lose  their  interest,  and  the  debtor  put  the 
money  in  his  pocket.  It  docs  not  appear,  in  the  state  of  the  case, 
of  what  the  fund  in  the  hands  of  the  defendants  consisted.  But 
it  is  hardly  possible,  that  it  should  have  been  altogether  a  dead 
fund.  Probably  it  consisted,  in  part  at  least,  of  outstanding  debts, 
which  would  carry  interest.  And  if  so,  it  would  make  the  injustice 
ofthe  debtor's  pocketing  the  surplus,  t he  more  glaring.  There  is  not 
a  perfect  analogy  between  the  case  before  us  and  that  of  commission- 
ers of  Bankrupt.  For,  although  the  statutes  of  bankruptcy,  may 
not  contain  any  express  provisions  respecting  the  payment  of  in- 


Dec.  1822.]  OF  PENNSYLVANIA.  125 

(Scott  and  others  v.  Morris  and  another,  assignees  of  Humphreys  and  another.) 

terest,  yet  the  chancellor  exercises  larger  equitable  powers,  than 
this  court  would  venture  to  assume.  I  think  it  safer  to  put  the  case 
on  the  words  of  trust  contained  in  the  deed  of  assignment.  These 
words  on  a  fair  construction,  include  interest,  and  therefore  the 
creditors  are  entitled  to  interest.  It  was  remarked  by  the  counsel 
for  the  defendants,  that  the  plaintiffs  had  executed  a  release,  by 
which  their  claim  of  interest  was  extinguished.  But  the  same 
agreement  would  prove  that  the  principal  also  was  extinguished. 
And  so,  in  truth  it  is  as  regards  the  debtor.  The  plaintiffs  could 
no  longer  support  an  action  against  him  for  the  principal.  But 
they  have  a  good  claim  under  the  assignment,  and  then  the  ques- 
tion is,  to  how  much  are  they  entitled,  which  brings  the  point  at 
last,  to  the  construction  of  the  deed,  on  which  I  have  already  ex- 
pressed my  sentiments.  On  the  whole  then,  I  am  of  opinion,  that 
the  plaintiffs  are  entitled  to  interest  up  to  the  time  of  the  payment  of 
the  last  dividend. 


[Philadelphia,  Dec.  30,  1822.] 

LEVY  against  PETERS  and  another,  Executors  of  SPROGELL. 

IN  ERROR. 

Payment  of  part  of  a  check  by  the  drawer,  after  it  becomes  due,  dispenses  with  the 
necessity  of  proving  a  demand  on  the  bank,  in  a  suit  against  him. 

Si,  it  seems,  would  a  payment  of  part,  before  the  check  becomes  due. 

The  plaintiff  cannot,  by  voluntarily  giving  credit  for  a  part  payment,  evade  the  ne- 
cessity of  proving  a  demand  on  the  drawee,  if  the  defendant  disclaims  such  credit, 
and  insists  on  the  want  of  a  demand.  But  if  the  defendant  acquiesces  in  such  cre- 
dit, and  insists  that  the  whole  has  been  paid,  and  relies  on  length  of  time,  and 
other  circumstances,  to  discharge  him  altogether,  he  thereby  admits  a  part  payment. 

On  a  writ,  of  error  to  the  Court  of  Common  Pleas  of  the  County 
of  Philadelphia,   in    assumpsit,   brought   by  Joseph   Levy  against 
Richard  Peters,  and  Betsy  K.  Sprogell,  executors  of  David  Spro- 
gell,  deceased,  a  bill  of  exceptions  was  returned,  which  stated, 
that  on  the  trial  the  plaintiff  gave  in  evidence  a  check  for  400  dol- 
lars, drawn  by  the  testator  on  the  Mechanics'  Bank,  in  favour  of 
the  plaintiff,  dated  the  12th  of  June,  1815,  on  which  he  claimed  as 
due,  a  balance  of  50  dollars,  with  interest  from  the  date  thereof, 
giving  credit  for  the  350  dollars,  which  he  said  had  been  paid  by  the 
defendant's  testator  in  his  life  time.     The  defendants  insisted,  that 
the  check  had  been  wholly  paid,  and   had  been  cancelled  by  the 
said  testator,  or  some  person  who  had  it ;   and  gave  evidence  to 
prove  that  it  had  been  cancelled.     The  defendants  then  insisted, 
that  the  said  evidence  so  exhibited  by  them,  together  with  the  great 
length  of  time  that  had  elapsed  since  the  date  of  the  check,  were 


126  SUPREME  COURT  [Philadelphia, 

(Levy  v.  Peters  and  another,  executors  of  Sprogell.) 

sufficient  to  entitle  the  defendants  to  the  verdict  of  the  jury,  and  to 
go  acquitted  and  discharged.  And  the  plaintiff  then  and  there  in- 
sisted, that  the  said  evidence,  as  given,  was  insufficient  to  entitle  the 
defendants  to  the  verdict  of  the  jury,  but  that  the  plaintiff  was  en- 
titled to  recover. 

The  President  of  the  court  delivered  the  opinion  of  the  court 
to  the  jury  as  follows,  to  wit :  "  That  the  jury  must  judge  as  a 
matter  of  fact,  whether  the  check  had  been  cancelled,  and  of  the 
other  questions  of  fact  arising  in  the  cause  ;  but  that  the  plaintiff 
could  not  recover,  because  he  had  not  proved  a  demand  upon  the 
bank  on  which  the  said  check  was  drawn.  That  there  was  no  evi- 
dence of  the  payment  of  350  dollars  in  part  of  the  amount;  and  if 
there  had  been,  it  would  not  have  altered  the  case  in  this  respect; 
a  check  on  the  bank  being  in  the  nature  of  an  inland  bill  of  ex- 
change, and  subject  to  all  the  rules  which  regulate  the  negotiation 
of  such  an  instrument."  The  jury  gave  their  verdict  for  the  de- 
fendants. Whereupon  the  plaintiff  excepted  to  the  opinion  of  the 
said  court. 

E.  S.  Sergeant  and  Phillips,  for  the  plaintiff  in  error,  now  con- 
tended, that  the  court  below  had  charged  the  jury   erroneously. 
They  informed  the  jury,  that  a  demand  on  the  bank  was  indispensa- 
ble, to  enable  the  plaintiff  to  recover;  whereas  payment  of  part  by 
the  drawer,  dispenses  with  the  necessity  of  making  a  demand.   Either 
want  of  funds  in  the  hands  of  the  drawee,  a  payment  in  part  by  the 
drawer  or  an  acknowledgment  of  the  debt,  and  a  promise  to  furnish 
funds  for  the  balance,  dispenses  with  the  necessity  of  a  protest  and 
notice,  in  the  case  of  a  bill  of  exchange,  or  promissory  note.     Read 
v.   Wilkinson,  Cir.  Court,  Whart.  Dig.  87.     It  would  have  been 
fruitless  to  present  the  check  at  bank,  in  order  to  receive  50  dollars 
upon  it.     No  bank  would  pay  a  portion  of  the   amount  of  a  check. 
The  court,  however,  say,  that  there  was  no  evidence  of  the  payment  of 
the  350  dollars,  in  part  of  the  amount.     Yet  this  was  a  fact  admitted, 
on   both   sides.     The  plaintiff  stated   it  explicitly,    and    demanded 
only  the  balance  :   the  defendants  insisted,  that  the  check  had  been 
wholly  paid,  and  relied  upon  the  evidence  they  had  given  of  that 
fact,  and  on  the  length  of  time  to  excuse  them.    They  never  pretended 
to  disclaim  the  credit  given  by  the  plaintiff,  and  the  court  below  ought 
to  have  considered  that  as  a  fact  admitted  on  both  sides.     The  court 
go  still   further,  and  say,  that  even  part  payment  would   not  have 
altered  the  case  :  in  which  there  is  manifestly  error,  because,  even 
in  the  case  of  bills  of  exchange,  to  which  the  court  assimilate  the 
check,  the  rule  is  well  settled,  that  part  payment  dispenses  with  the 
proof  of  a  demand  on  the  drawee  :  since  it  is  an  admission  by  the 
drawer  of  his  liability  to  pay. 

Peters  contra.  The  plaintiff  gave  no  evidence  but  the  check. 
He  credited  the  defendants  with  350  dollars  :  but  of  this  they  knew 
nothing  :  they  were  not  bound  to  deny  or  admit  it,  nor  called  upon 
to  do  so.     Surely  the  plaintiff,   by  voluntarily  giving  a  credit  for 


Dec.  1822.]  OF  PENNSYLVANIA.  127 

(Levy  v.  Peters  and  another,  executors  of  Sprogell.) 

part  payment  of  a  check,  or  bill  of  exchange,  cannot  exempt  himself 
from  the  necessity  of  proving  a  demand  on  the  drawee,  and  notice 
to  the  drawer.  Otherwise,  the  rules  established  for  the  security  of 
parties  to  commercial  instruments,  may  be  easily  evaded.  But,  sup- 
posing there  was  a  part  payment,  we  contend,  that  the  court  was 
right  in  saying,  that  a  demand  on  the  bank  was  necessary.  It  is 
always  necessary,  unless  it  be  proved  that  the  drawer  had  no  funds 
there. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  G.  J.  This  is  an  action  pn  a  check  for  400  dollars, 
drawn  by  the  defendant's  testator,  Edward  Sprogell,  on  the  Mecha- 
nics' Bank,  payable  to  the  plaintiff.  On  the  trial,  in  the  court  be- 
low, the  plaintiff  gave  credit  for  350  dollars,  which  he  said,  was 
paid  by  Edward  Sprogell,  and  demanded  only  the  balance  of  50 
dollars,  with  interest  thereon.  The  defendants  insisted,  that  the 
whole  had  been  paid  by  the  testator,  and  that  the  check  had  been 
cancelled.  The  president  of  the  court  submitted  to  the  jury,  the 
fact  of  payment,  but  remarked,  "  that  there  was  no  evidence  of  the 
payment  of  350  dollars  in  part,  of  the  amount,  and  if  there  had 
been,  it  would  not  have  altered  the  case,  in  this  respect :  a  check 
on  the  bank,  being  in  the  nature  of  an  inland  bill  of  exchange,  and 
subject  to  all  the  rules  which  regulate  the  negotiation  of  such  an 
instrument." 

If  the  defendants  had  put  their  case  on  the  necessity  of  a  demand 
of  payment  from  the  bank,  before  the  drawer  could  be  resorted  to, 
and  had  disclaimed  the  payment  of  any  part  by  their  testator,  the 
court  might  then,  with  great  propriety,  have  charged  the  jury,  that 
as  no  payment  was  proved,  and  no  demand  proved,  the  plaintiff 
could  not  recover.     It  would  not  be  sufficient  for  the  plaintiff  to 
give  credit  for  part — he  should  prove  it.     For  if  the  bare  giving^ 
credit,  were  sufficient,  the  holder  of  a  bill,  who  had  been  guilty  of 
laches,  might  always  get  over  it,  by  giving  credit  for  a  small  pay- 
ment.    But  this  cause   appears  to  have  taken  a  different  course. 
For  the  defendants  alleged,  that  the  whole  had  been  paid  ;  and 
their  counsel  requested  the  court  to  charge  the  jury,  that  payment 
should  be  presumed  from  length  of  time,  and  other  circumstances. 
The  jury  might  well  have  supposed,  from  the   conduct  of  the  de- 
fendants, that  they  admitted  the  credit  given  by  the  plaintiff.     In- 
deed, the  plaintiff  himself,  might  have  been  induced  to  suppose  so, 
and  therefore  have   omitted  the  production  of  evidence   of   pay- 
ment.    The  question  will  be,  then,  whether  the  court  was  right,  in 
its  opinion,  that  even  supposing  payment  of  part  to  be  proved,  the 
plaintiff  could  not  recover,  because  he  had   not  proved  a  demand 
of  the  bank.     In  general,  there  cannot  be  a  recovery,  without  proof 
of  a  demand,  and  notice  to  the  drawer,  that  payment  has  been  re- 
fused.    But  there  are  exceptions  to  this  general  rule.     Whenever 
the  drawer  acknowledges  himself  to    be  liable  to  payment,  the 


128  SUPREME  COURT  [Philadelphia, 

(Levy  v.  Peters  and  another,  executors  of  Sprogell.) 

necessity  of  proving  a  demand  of  the  drawee,  and  his  refusal  to 
pay,  and  notice  to  the  drawer,  is  dispensed  with.  Because  such 
acknowledgment  carries  with  it  internal  evidence,  that  the  drawer 
knew,  that  due  diligence  had  been  used  by  the  holder,  or  even 
if  it  had  not,  that  still  the  drawer  confessed  he  was  under  an  obli- 
gation to  pay.  And  it  is  immaterial,  whether  there  be  proof  of 
an  express  promise  to  pay,  or  of  other  circumstances  from  which  it 
may  be  inferred,  that  the  drawer  acknowledged  himself  liable.  And 
I  tak,e  it,  that  payment  of  part,  is  such  a  circumstance.  It  was  so 
said,  by  Judge  Washington,  in  the  case  of  Read  v.  Wilkinson,  cited 
in  Whart.  Dig.  87,  from  a  MS.  report.  And  there  is  good  reason 
for  it.  For  why  should  part  be  paid,  unless  the  payer  acknowledged 
the  obligation  of  paying  the  whole.  I  am  speaking  now,  of  pay- 
ment of  part,  after  a  bill  has  become  due.  It  does  not  appear,  by 
the  bill  of  exceptions  in  this  case,  at  what  time  the  part  payment 
was  credited.  But  if  one  draws  a  check  on  a  bank,  payable  some 
time  after  date,  and  before  the  time  of  payment,  the  drawer  pays 
part,  I  should  suppose  it  must  be  the  intent  of  the  parties,  that  the 
check  should  not  be  presented.  I  doubt  whether  the  bank  would 
pay  the  balance  in  such  case,  without  a  special  order  from  the 
drawer,  or  some  written  explanation.  On  this  point,  however,  I 
give  no  positive  opinion,  as  the  case  does  not  require  it.  But  I  am 
of  opinion,  that  there  was  error  in  that  part  of  the  court's  charge, 
in  which  it  was  said,  that  supposing  the  payment  of  part  of  the  check 
to  have  been  proved,  still  the  plaintiff'  was  not  entitled  to  recover, 
because  he  had  not  proved  a  demand  of  the  bank  on  which  it  was 
drawn.  The  judgment  is  therefore  to  be  reversed,  and  a  venire  de 
novo  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


[Philadelphia,  Dec.  30,  1822.] 
FRIES  against  BOISSELET. 

IN  ERROR. 

Defendant  being  arrested  on  a  note,  said  that  he  owed  the  plaintiff  the  money  and 
inlended  lo  have  paid  him,  but  that  he  had  taken  ungentlemanly  sleps  to  get  it,  and 
as  he  had  taken  these  steps,  he  would  keep  him  out  of  it  as  long  as  he  could.  Held 
that  this  was  not  such  an  acknowledgment  as  would  take  the  case  out  of  the  statute 
of  limitations. 

Error  to  the  Court  of  Common  Pleas  of  Philadelphia  county, 
in  which  judgment  was  rendered  for  the  defendant,  and  the  opi- 
nion of  the  President  of  the  court  was  filed  at  the  request  of  the 
plaintiff.  The  suit  was  originally  brought  before  John  Geyer, 
Esquire,  one   of  the    alderman  of  the  city  of  Philadelphia,    who 


Dec.  1822.]  OF  PENNSYLVANIA.  129 

(Fries  v.  Boisselet.) 

rendered  judgment  for  the  plaintiff,  and  the  defendant  appealed  to 
the  Court  of  Common  Pleas. 

The  action  was  brought  on  a  promissory  note,  dated  the  12th 
October,  1811,  drawn  by  Eugene  Boisselet,  the  defendant,  in  fa- 
vour of  John  Fries,  the  plaintiff,  for  the  sum  of  60  dollars,  no  time 
being  limited  for  the  payment.  The  plaintiff  commenced  his  action 
before  the  magistrate,  in  July,  1819,  and  the  defendant,  on  being 
arrested  by  the  constable,  said,  that  "  he  owed  the  plaintiff  the 
money,  and  intended  to  have  paid  him,  but  that  he  had  taken  un- 
gentlemanly  steps  to  get  it,  and  as  he  had  taken  these  steps,  he 
would  keep  him  out  of  it  as  long  as  he  could."  The  defendant 
pleaded  the  statute  of  limitations  before  the  magistrate.  In  the 
court  below  issue  was  joined  on  the  statute  of  limitations,  and  the 
president  of  the  court  charged  the  jury,  that  there  was  not  sufficient 
evidence  of  such  acknowledgment  or  promise  as  would  take  the 
case  out  of  the  statute,  and  that  their  verdict  should  be  for  the 
defendant.  ^ 

Kittera,  for  the  plaintiff  in  error,  contended,  that  the  acknow- 
ledgment by  the  defendant  was  sufficient  to  take  the  case  out  of 
the  statute  of  limitations.  The  slightest  acknowledgment  is  suffi- 
cient for  that  purpose,  without  a  new  promise,  and  from  such  ac- 
knowledgment the  law  infers  a  promise.  The  statute  is  not  consi- 
dered as  extinguishing  the  debt,  which  remains  binding  in  equity 
and  conscience.  It  merely  affects  the  remedy,  which  is  revived  by 
an  admission  of  the  obligation  to  pay,  5  Burr.  2630.  That  a  bare 
acknowledgment  of  the  debt  within  six  years  prior  to  the  action, 
is  sufficient  to  revive  it  and  prevent  the  statute,  though  no  new 
promise  was  made,  was  held  by  all  the  judges.  Carth.  470.  4  Bac. 
Ab.  483,  E.  8.  In  Jones  v.  Moore,  5  Binn.  579,  a  letter  written 
by  the  defendant,  in  which  were  contained  these  expressions,  "  I 
expect  to  be  in  the  city  in  a  few  days,  and  will  settle  the  matter," 
was  held  to  revive  the  debt.  The  introduction  of  qualifying  words 
will  not  invalidate  the  admission,  unless  they  amount  to  an  asser- 
tion that  the  debt  is  paid.  In  Cowp.  589,  it  is  said  by  Lord  Mans- 
field, that  the  words,  "  I  am  ready  to  account,  but  nothing  is  due 
to  you,"  are  sufficient  to  take  the  case  out  of  the  statute,  if  any 
thing  is  proved  to  be  due.  In  Moody  v.  Miles,  3  Serg.  fy  Raivle, 
211,  the  last  reported  case  on  this  subject,  which  has  occurred  in 
this  state,  the  defendant  said,  on  being  arrested  by  the  sheriff,  "  I 
will  write  to  Mr.  Watts  to  attend  to  the  business.  Moody  did 
not  do  the  business  accurately."  Yet  these  words  were  held  to  be 
a  sufficient  acknowledgment  to  revive  the  debt,  though  there  was 
no  promise  to  pay,  but  the  defendant  protested  in  a  certain  degree 
against  the  validity  of  the  plaintiff's  claim.  In  Cobham  v.  Mose- 
ly,  2  Hayw.  6,  the  expressions  were  "  I  will  not  pay  it.  Rosewell 
ought  to  pay  it.  I  will  speak  to  him  about  it."  Yet  they  were 
held  sufficient  to  charge  the  defendant  after  the  six  years  had  elapsed. 
The   expressions  of  the  defendant  in   the   present   case,  that  he 

VOL.  IX.  11 


130  SUPREME  COURT  [Philadelphia, 

(Fries  v.  Boisselct.) 

would  keep  the  plaintiff  out  of  the  debt  as  long  as  he  could,  meant 
that  he  would  pay,  but  he  would  delay  payment  by  protracting 
the  suit  as  long  as  he  was  able.  He  further  insisted,  that  the  pre- 
sident was  bound  to  leave  to  the  jury  the  sufficiency  of  the  evidence 
to  take  the  case  out  of  the  statute,  as  it  was  a  matter  for  their  con- 
sideration, whether  there  was  a  new  promise,  or  an  acknow- 
ledgment :  and  that  it  was  error  to  charge  the  jury  peremptorily, 
that  they  must  find  for  the  defendant.  He  cited  on  this  point, 
Fisher's  Executors  v.  Duncan,  1  Hen.  fy  Munf.  563. 

King  and  T.  Sergeant,  contra,  urged,  that  to  take  the  case  out 
of  the  statute,  there  must  be  either  an  express  promise  to  pay  after 
the  six  years,  or  an  acknowledgment  from  which  a  promise  may 
be  inferred.  A  promise  may  be  inferred  from  a  simple  acknow- 
ledgment without  qualification  :  but  it  is  impossible  for  a  jury  to 
infer  a  promise  when  the  party,  in  the  same  breath  in  which  he 
admits  the  debt,  declares  that  he  will  not  pay  it.  When  the  defen- 
dant declared  that  he  would  keep  the  plaintiff' out  of  the  debt  as 
long  as  he  could,  he  meant  that  he  would  keep  him  out  of  it  as  long 
as  the  law  allowed  him:  that  he  would  employ  every  legal  protec- 
tion to  shield  him  against  the  demand  :  or,  in  other  words,  that  he 
would  take  advantage  of  the  lapse  of  time,  and  plead  the  statute. 
And  accordingly,  as  soon  as  he  appeared  before  the  magistrate,  the 
defence  he  made  was,  that  the  debt  was  barred  by  the  statute. 
Some  decisions  have  gone  a  great  way ;  but  of  late,  courts  have 
shown  a  strong  inclination  to  retrace  their  steps  on  this  subject, 
and  to  enforce  a  statute  which  is  highly  beneficial  in  its  effects. 
Clemenlson  v.  Williams,  8  Cranch.  72.  In  Jones  v.  Moore,  there 
were  no  negative  or  qualifying  words,  and  the  Chief  Justice  re- 
lies on  the  circumstance  of  the  plaintiff's  recognising  it  as  an  ex- 
isting debt.  Yeates,  J.  explicitly  holds,  that  where  the  party 
accompanies  the  acknowledgment  with  a  declaration,  that  he  means 
to  insist  on  the  benefit  of  the  statute,  no  promise  to  pay  can  be  im- 
plied, and  it  has  been  so  decided  by  Judge  Washington,  in  Reed 
v.  Wilkinson,  2  Brown' 's  Rep.  15  appendix,  and  also  by  the  Dis- 
trict Court  of  the  city  and  county,  in  Geyer  v.  Pearce,  2  Bro.  35. 
The  cases  of  Bell  v.  Rowland's  Administrators,  Hardin's  Kent. 
Rep.  301.  Brown  v.  Campbell,  1  Serg.  fy  Rawle,  175,  Miles  v. 
Moodie,  3  Serg.  fy  Rawle,  211,  and  the  recent  case  of  Sands  v. 
Gelston,  15  Johns,  511,  where  the  point  is  very  fully  considered  and 
decided  by  the  Supreme  Court  of  New  York,  all  concur  to  show, 
that  where  the  acknowledgment  is  qualified  by  any  expressions  or 
circumstances  which  evince  that  the  party  is  not  willing  to  pay  the 
debt,  there  the  law  will  not  raise  a  promise  or  revive  the  debt.  As 
to  the  objection  that  the  evidence  ought  to  have  been  left  to  the 
jury,  the  distinction  is  this :  where  there  is  any  thing  ambiguous  in 
the  language,  where  it  refers  to  extrinsic  circumstances  of  a  doubt- 

CD  O       " 

ful  character,  it  may  be  proper  to  leave  it  to  the  jury.     As  in  Miles 
v.  Moodie,  when  it  was  uncertain  in  what  character  Mr.   Watts 


Dec.  1922.]  OF  PENNSYLVANIA.  131 

(Fries  v.  Doisselet.) 

stood,  and  why  the  defendant  meant  to  write  to  him.  But  where 
all  is  plain  and  unambiguous,  the  construction  is  matter  of  law,  and 
the  party  has  a  right  to  an  explicit  direction  on  the  law  to  the  jury. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  on  a  promissory  note  drawn 
by  the  defendant,  payable  to  the  plaintiff.  Six  years  having  elapsed, 
in  consequence  of  which  a  recovery  was  barred  by  the  act  of  limita- 
tions,  the  plaintiff  commenced  his  action,  and  the  defendant  after  he 
was  arrested,  said,  "that  he  owed  the  plaintiff  the  money,  and  in- 
tended to  have  paid  him,  but  that  he  had  taken  ungentlemanly  steps 
to  get  it,  and  as  he  hacl  taken  those  steps  he  would  keep  him  out  of 
it  as  long-  as  he  could."  The  defendant  pleaded  the  statute  of  limi- 
tations, on  which  issue  was  joined  in  the  Court  of  Common  Pleas, 
and  the  president  in  his  charge  to  the  jury,  directed  them,  that  the 
words  spoken  by  the  defendant  were  not  sufficient  to  avoid  the  force 
of  the  statute. 

It  would  be  a  laborious  and  unprofitable  task,  to  examine  all  the 
cases  which  have  been  decided,  on  the  statute  of  limitations.  It  is 
sufficient  to  say,  it  has  been  pretty  well  settled,  that  the  bare  ac- 
knowledgment of  the  debt,  within  six  years,  without  an  express 
promise  to  pay  it,  would  be  evidence  from  which  the  jury  might  pre- 
sume a  new  promise.  The  case  of  Cowan  v.  M'Gowan,  in  the 
Circuit  Court  of  the  United  States,  Wall.  Rep.  went  thus  far,  and 
this  1  think,  was  the  ne  plus  ultra  of  the  Pennsylvania  decisions. 
In  England  the  law  was  carried  further  in  favour  of  the  creditor. 
It  was  held  in  Bryan  v.  Horse?nan,  4  East.  599,  that  the  debt 
was  revived  by  the  following  expressions  :  "I  do  not  consider 
myself  as  owing  Mr.  Bryan  a  farthing,  it  being  more  than  six 
years  since  I  contracted.  I  have  had  the  wheat,  I  acknowledge, 
and  I  have  paid  some  part  of  it,  and  £26  remains  due."  It  is  plain 
enough  from  the  report  of  this  case,  that  it  had  been  res  Integra, 
the  court  of  King's  Bench  would  have  decided  differently.  But 
they  found  themselves  embarrassed  by  precedents  from  which  they 
would  not  depart.  But  our  courts,  being  under  no  such  embarrass- 
ment, have  put  the  law  on  a  more  rational  footing ;  for  it  certainly 
is  not  rational  to  infer  a  promise  from  words  which  negative  a  pro- 
mise. The  principle  which  I  consider  as  now  established  with  us, 
is,  that  the  acknowledgment  of  the  debt  is  sufficient  evidence  to  infer 
a  promise  to  pay,  unless  it  be  accompanied  with  words  inconsistent 
with  a  promise.  The  case  of  Murray  v.  Tilly,  was  tried  before 
me  at  Nisi  Prius  in  the  year  1811.  It  has  not  been  reported,  be- 
cause it  was  not  moved  in  bank.  But  I  have  examined  my  notes, 
and  find  that  it  was  as  follows.  It  was  an  action  on  a  promissory 
note,  drawn  by  Tilly,  payable  to  James  Prince,  and  by  him  in- 
dorsed, of  which  the  plaintiff  was  the  holder.  After  the  lapse  of  six 
years,  demand  of  payment  being  made  of  Tilly,  he  answered, 
"that  if  the  note  had  been  presented  to  him  in  time,  he  would  have 


132  SUPREME  COURT  [Philadelphia, 

(Fries  v.  Boissclet.) 

paid  it,  but  that  he  knew  the  statute  of  limitations  would  now  bar 
the  claim  and  he  would  not  pay  it."  In  the  course  of  conversation, 
Tilly  acknowledged  the  note  to  be  genuine,  that  it  was  signed  by 
him,  and  had  never  been  paid.  But  he  added,  "  that  it  was 
drawn  for  the  accommodation  of  Prince,  and  if  it  had  been  presented 
earlier,  he  might  have  had  an  opportunity  of  getting  payment  from 
him."  The  counsel  for  the  plaintiff  (Mr.  Chauncey)  urged  the 
cases  of  Cowan  v.  M'Gowan,  and  Bryan  v.  Horseman.  I  will 
briefly  give  the  substance  of  my  charge  to  the  jury,  as  it  contains 
the  sentiments  I  have  held  ever  since.  "  The  defendant  acknow- 
ledged his  signature,  and  that  the  note  had  not  been  paid,  but  de- 
clared, that  he  knew  the  debt  was  barred  by  the  act  of  limitations, 
and  that  he  would  not  pay  it.  The  case  of  Cowan  v.  M'Gowan 
was  fully  considered  by  the  judges  who  decided  it,  (of  whom  I  was 
one)  and  established  the  principle,  that  an  acknowledgment  of  an 
existing  debt,  was  sufficient  evidence  of  a  new  promise.  This  was 
going  far  enough,  and  farther  than  I  should  have  gone,  if  the  mat- 
ter had  been  new.  But  the  case  before  us,  is  different.  Taking 
the  defendant's  confession  altogether  he  negatived  a  promise  by 
declaring  that  he  would  not  pay.  To  call  this  evidence  of  a  pro- 
mise, appears  to  me  to  be  contrary  to  common  sense.  No  case  has 
gone  so  far.  Bryan  v.  Horseman  is  the  nearest  to  it,  but  that  is 
no  authority  here.  In  that  case  the  court  plainly  intimated,  that 
the  law  was  settled  in  England  contrary  to  their  opinion  of  the 
true  construction  of  the  statute.  If  it  has  been  so  settled  there,  it 
was  sufficient  to  justify  their  decision;  but  no  such  matter  having 
been  decided  here,  I  am  of  opinion  that  where  a  man,  as  in  the  pre- 
sent case,  declares  that  he  will  not  pay  the  debt  because  it  is 
hatred  by  the  statute,  the  jury  ought  not  to  presume  a  new 
promise.  The  jury  found  for  the  defendant,  and  their  verdict  was 
acquiesced  in.  I  do  not  know  that  this  case  has  been  contradicted. 
On  the  contrary,  I  believe  the  current  of  opinion  has  run  with  it,  both 
in  this  and  other  states.  In  Reedy.  Wilkinson, 2  Brown's  Rep.  15 
•Appendix,  it  was  held  by  the  Circuit  Court  of  the  United  States, 
for  this  district,  that  words  of  acknowledgment,  accompanied  by  ex- 
pressions tending  to  qualify  them,  should  be  taken  altogether,  and 
would  not  amount  to  a  promise  to  pay.  In  Wislar's  Executors 
v.  Moore,  5  Binn.  579,  it  was  said  by  Yeates,  Judge,  "  that  when 
the  debtor  expressed  an  intent  to  plead  the  statute,  no  promise  could 
be  inferred  from  an  acknowledgment  of  the- debt."  The  same  prin- 
ciple was  supported  by  the  Court  of  Appeals  of  Kentucky,  in  Bell 
v.  Row-land's  Administrators,  Hardin's  Rep.  301.  In  Brown  v. 
Campbell,  1  S.  3*  R.  176,  it  was  said  by  the  court,  that  where  the 
defendant  did  not  deny,  that  the  debt  remained  unpaid,  but  asserted 
that  he  never  was  liable  for  it,  no  promise  could  be  inferred.  In 
Clcmenlson  v.  Williams,  8  Crunch.  72,  it  was  said  by  Marshall, 
C.  J.  "  that  the  decisions  on  the  statute  of  limitations  had  gone  full 
as  far  as  they  ought  to  be  carried,  and  the  court  was  not  inclined  to 


Dec.  1822.]  OF  PENNSYLVANIA.  133 

(Fries  v.  Boisselet.) 

extend  them,"  and  the  decision  in  that  case  was,  that  to  take  a  case 
out  of  the  statute,  it  was  not  sufficient  to  acknowledge  within  six 
years  that  the  debt  had  ever  existed ;  the  acknowledgment  must  be, 
that  it  still  existed.  The  last  case  which  I  shall  mention,  is  Sands 
v.  Gelston,  15  Johns.  511.  The  opinion  of  the  court  was  deliver- 
ed by  Spencer,  C.  J.  who  examined  the  different  cases,  and  rea- 
soned on  the  subject  with  his  usual  discernment  and  accuracy.  His 
conclusion  on  the  whole  was,  "  that  the  acknowledgment  of  the 
existence  of  a  debt  within  six  years  before  the  suit  was  brought,  is 
evidence  of  a  promise  to  pay  the  debt ;  but  if  such  acknowledgment 
is  qualified  in  a  way  to  repel  the  presumption  of  a  promise  to  pay, 
then  it  will  not  be  evidence  sufficient  to  revive  the  debt,  and  take  it 
out  of  the  statute."  This  is  the  true  principle.  It  accords  with 
reason  and  may  now  be  considered  as  established  by  abundant  autho- 
rity. Let  us  apply  it  then  as  a  test,  to  the  case  before  us.  The 
defendant  acknowledged  that  he  owed  the  money,  and  would  have 
paid  it,  if  he  had  not  been  treated  in  an  ungentlemanly  manner. 
But  having  been  so  treated,  he  declared  that  he  would  keep  the 
plaintiff  out  of  it  as  long  as  he  could.  Taking  the  defendant's  words 
altogether,  they  amounted  to  this — that  he  would  not  pay  until  com- 
pelled by  law.  Now  this  certainly  is  quite  inconsistent  with  a  pro- 
mise to  pay,  and  therefore  no  promise  could  be  presumed. 

I  am  of  opinion,  that  there  was  no  error  in  the  charge  of  the  court, 
and  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


[Philadelphia,  Dec.  30th,  1822.] 

FLINTHAM  appellant  against  FORSYTHE  and  wife,  appellees. 

SAME  against  L'AMY  and  wife,  appellees, 
i 

APPEAL. 

It  seems  the  Orphans'  Court  cannot  decree  the  payment  of  a  distributive  share,  ad- 
mitted by  (lie  administrator  to  be  in  his  hands,  where  his  accounts  are  filed  in  the 
Register's  Office  and  not  brought  into  the  Orphans'  Court. 

But  where  the  accounts  of  an  administrator  are  brought  into  the  Orphans'  Court, 
it  may  decree  payment  of  a  distributive  share  to  one  heir,  where  there  is  no  dis- 
pute between  him  and  the  administrator  as  to  the  balance  due  him,  though  the 
accounts  are,  on  the  application  of  other  heirs,  depending  before  auditors. 

The  Orphans' Court  cannot  decree  payment  by  an  administrator,  of  the  costs  reco- 
vered in  a  suit  brought  against  him  by  an  heir  in  a  court  of  common  law,  to  re- 
cover his  distributive  share. 

These  cases  came  up  upon  appeal  from  the  Orphans'  Court  of 
the  City  and  County  of  Philadelphia.  The  appellees,  on  the  5th 
March,  1821,  presented  a  joint  petition  to  the  Orphans'  Court, 
claiming  respectively,  distributive  shares  of  the  estate  of  Eliza- 
beth Fcbiger,  deceased,  and  setting  forth,  that  William  Flintham, 


134  SUPREME  COURT  [Philadelphia, 

(Flinlham,  Appellant  v.  Forsythc  and  wife,  Appellees,  and  Same  t>.  L'Amy  and  wife, 

Appellees.) 

the  appellant,  administered  thereto,  and  had  settled  his  accounts  in 
the  Register's  Oifice,  by  which  he  admitted  a  balance  in  his  hands, 
to  be  distributed  according  to  law.  That  the  petitioners  had 
brought  suits  in  the  District  Court,  for  the  city  and  county  of  Phi- 
ladelphia, against  Flintham,  for  the  recovery  of  their  distributive 
shares,  and  had  respectively  obtained  judgments,  on  the  14th  De- 
cember, 1820,  for  the  sum  of  1400  dollars,  and  33  cents,  which  re- 
mained unpaid.  And  praying  the  court  to  issue  citations  to  the 
said  Flinlham,  to  appear  and  show  cause,  why  the  Orphans'  Court 
should  not  decree  him  to  pay  over  the  sums  they  were  entitled  to, 
as  heirs  of  the  said  E.  Febiger.  The  Orphans'  Court  directed  ci- 
tations to  issue,  according  to  the  prayer  of  the  petition ;  and  on 
the  17th  April,  1821,  after  hearing,  made  a  decree  in  favour  of 
each  of  the  petitioners,  that  the  appellant  should  pay  the  sum  of 
1400  dollars,  and  33  cents,  with  interest  from  the  14th  December, 
1820,  and  20  dollars  and  50  cents  costs  of  suit  in  the  District 
Court,  and  also,  the  costs  incurred  by  the  decree. 

Bradford,  for  the  appellant,  contended,  that  the  Orphans'  Court 
had  no  jurisdiction  over  the  case,  and  that  their  decree  was  there- 
fore, void.  It  appears  by  the  petition,  that  the  accounts  of  the  ap- 
pellant were  settled  in  the  Register's  Office  :  there  is  no  reason  to 
believe  that  they  ever  were  in  the  Orphans'  Court.  The  Orphans' 
Court  cannot  make  a  decree  respecting  accounts  filed  in  the  Re- 
gister's Office,  never  brought  into  the  Orphans'  Court,  nor  before 
them.  They  had  full  power  under  the  first  section  of  the  act  of 
March  21th,  1813,  Purd.  Dig.  490,  to  cause  the  Register  to  trans- 
mit the  accounts  into  the  Orphans'  Court,  or  to  compel  the  admin- 
istrator to  exhibit  them :  but  neither  of  these  proceedings  has  been 
adopted  by  the  appellees.  As  to  the  judgments  in  the  District  Court 
they  are  no  foundation  for  the  Orphans'  Court  to  proceed  upon. 
They  are  not  authorized  to  carry  into  effect,  the  judgments  of  a 
common  law  court.  The  proper  mode  to  enforce  them,  is  to  take 
out  executions  there. 

Ewing,  for  the  appellees,  stated,  that  their  reason  for  proceeding 
in  the  Orphans'  Court  was,  that  on  obtaining  an  order  to  sell  to  E. 
Febiger 's  real  estate,  in  January,  1819,  the  appellant  and  T.  Brad- 
ford, as  his  surety,  gave  a  bond,  with  condition  to  pay  over  the 
proceeds  in  such  manner  as  the  Orphans'  Court  should  decree, 
and  owing  to  the  insolvency  of  the  appellant,  their  object  was  to 
resort  to  the  surety  for  the  amount  recovered.  He  alleged  that 
the  accounts  of  Mr.  Flintham  had  been  in  the  Orphans'  Court ; 
that  auditors  had  been  appointed  to  settle  them,  that  they  had 
stated  an  account,  and  returned  it  to  the  Orphans'  Court,  before 
the  decrees  in  these  cases  were  made,  and  suggesting  diminution 
of  the  record,  prayed  the  court  to  award  a  certiorari,  to  cause  them 
to  be  returned. 

The  court  therefore  awarded  a  certiorari  to  the  Orphans'  Court. 

On  the  return  of  the  certiorari,  sundry  papers  were  sent  up  with 


Dec.  1822.]  OF  PENNSYLVANIA.  135 

(Flintham,  Appellant  v.  Forsytlie  and  wife,  Appellees,  and  Same  v.  L'Amy  and  wife, 

Appellee?.) 

it,  among  which  were  the  accounts  suggested  by  the  counsel  for  the 
appellees.  It  now  appeared  that  the  accounts  of  the  appellant  as 
administrator  of  E.  Febiger,  came  before  the  Orphans'  Court,  and 
were  confirmed  nisi,  on  the  19th  March,  1821.  But  on  the  22d  of 
the  same  month,  they  were  referred  to  auditors,  appointed  by  the 
court,  on  the  petition  of  the  heirs  of  Capt.  Carson,  who  had  been 
entitled  to  one  of  the  distributive  shares ;  and  that  the  accounts 
were  before  the  auditors  at  the  time  of  the  decree  of  the  Orphans' 
Court  above  mentioned.  On  the  18th  May,  1821,  the  auditors 
made  a  report,  which  was  filed  in  the  Orphans'  Court,  on  which, 
that  court  decreed  a  larger  sum  to  the  heirs  of  Capt.  Carson,  than 
had  been  decreed  to  the  appellees.  The  appellees,  however,  made 
no  objection  to  the  accounts,  as  originally  settled  by  the  appellant, 
but  acquiesced  ;  and  it  appeared,  that  all  parties  were  content  with 
Mr.  Flintham? s  settlement,  except  the  heirs  of  Capt.  Carson. 

Bradford,  now  relinquished  his  original  objection,  but  insisted 
that  the  decree  was  invalid,  because,  at  the  time  that  it  took  place, 
the  accounts  were  before  auditors,  and  it  was  out  of  the  power  of 
the  court  to  act  upon  them,  till  they  had  been  reported.  The  ac- 
counts had  been  confirmed  nisi:  and  when  objections  were  made 
on  the  part  of  one  of  the  heirs,  the  whole  confirmation  was  cancelled, 
and  the  accounts  were  removed  from  the  control  of  the  court,  into 
the  custody  and  power  of  the  auditors.  They  could  not  be  at  the 
same  time  before  the  court,  and  another  tribunal  possessing  a  dis- 
tinct jurisdiction.  Besides,  the  Orphans'  Court  are  empowered  by 
law,  to  make  only  one  decree,  ascertaining  the  sum  to  be  distributed. 
The  first  section  of  the  act  of  19th  April,  1794,  Purd.  Dig.  288, 
provides,  that  "  they  are  to  order,  and  make  just  and  equal  dis- 
tribution of  what  remaineth  clear,''''  after  payment  of  debts  and 
expenses.  This  must  be  by  one  decree,  embracing  all  the  heirs; 
not  by  separate  decrees,  for  separate  sums.  Neither  have  they 
power  to  order  the  payment  of  costs  recovered  in  a  court  of  com- 
mon law.  That  is  a  charge  for  which,  the  only  remedy  for  the 
plaintiff  is,  by  process  out  of  the  court  in  which  judgment  has  been 
recovered. 

Ewing  for  the  appellees,  answered  that  the  appellees  had  never 
withdrawn  the  accounts  from  the  Orphans'  Court,  nor  objected  to 
them  as  originally  stated :  and  they  ought  not  to  be  prejudiced  by 
the  acts  of  others,  without  their  consent,  nor  had  the  administrator 
withdrawn  them.  If,  therefore,  the  accounts  were,  strictly  speak- 
ing, before  the  auditors,  and  not  in  court,  as  respected  the  heirs  of 
Capt.  Carson,  yet,  as  respected  the  appellees,  they  are  to  be  con- 
sidered as  still  remaining  in  court,  subject  to  its  control,  and  they 
might  certainly  decree  a  balance  which  neither  party  disputed. 
There  is  nothing  in  the  act  of  1794,  to  prevent  the  court  from 
making  separate  decrees,  from  time  to  time,  as  circumstances  may 
require,  in  favour  of  the  different  heirs  of  an  intestate. 


136  SUPREME  COURT  [Philadelphia, 

Flintham,  Appellant  v.  Forejlhe  and  wife,  Appellees,  and  Samcc.L'Amy  and  wife, 

Appellees.) 

The  opinion  of  the  court  was  delivered  by 

Tilghmax,  C.   J.     As  these  two   cases   are   the   same  in   prin- 
ciple, they  may  be    decided    tog-ether.      IVrn.  Flintham  the  ap- 
pellant, is  the  administrator  of   the  goods,   &c.  of  Elizabeth  Fe- 
biger,  deceased,  and    the    appellees  Forsythe    and  wife,  and  V 
Amy  and  wife,  obtained  a  decree,  in  the  Orphans'   Court  of  Phi- 
ladelphia, for  a  certain  sum  of  money,  being  the  distributive  share 
of  the  estate  of  the  said  E.  Febiger,  to  which  Mrs.  Forsythe  and 
Mrs.    UJLmy    were    entitled.     The    first    objection  to  the  decree, 
was,  that  the  Orphans'  Court  had  no  jurisdiction,  because  the  ac- 
count settled  by  the  administrator  before  the  Register,  was  never 
brought    before    the    Orphans'    Court.      This    objection    has    been 
abandoned,  in  consequence  of  a  cer/orari,  by  virtue  of  which,  sun- 
dry papers  were  sent  up  to  this  court,  among  which  is  the  account 
in  question,  and  it  appears  that  it  was  before  the  Orphans'  Court 
when  they  made  their  decree.     It  was  then  objected,  that  the  de- 
cree was  irregular,  because  it  was  made  while  the  administrator's 
account  was   before   auditors,  to  whom  it  had  been  referred  by  the 
count.     To  this  it  was  answered,  and,  we  think,  satisfactorily,  that 
the  appellees  never  desired  the  account  to  be  referred  to  auditors, 
being  content  with  the  settlement  made  before  the  Register;  neither 
did  Uie  administrator  desire  it.     But  it  was  referred  to  auditors,  at 
the  request  of  some  of  the  other  heirs  of  Mrs.  Febiger.     The  ap- 
pellees brought  suit  in  the  District  Court  of  the  City  and  County  of 
Philadelphia,  against  the   administrator,  and  obtained    a    verdict 
and  judgment  for  the  amount  due  to  them  respectively,  on  the  ac- 
court  as  settled  before  the  Register.     The  Orphans'  Court,  there- 
fore, had  a  right  to  decree  in  favour  of  the  appellees,  according  to 
the  settled  account,  which  was  undisputed  by  either  party.     The 
appellant  could  suffer  no  injury,  as  this  court  would  have  rectified 
any  error  which  he  could  show  in  the  account.     But  in  one  respect, 
the  Orphans'  Court  went  too  far,  for  they  decreed  that  the  admi- 
nistrator should  pay  the  costs  of  the  suit  in  the  District  Court. 
In  this  we  think  they  were  wrong,  for  they  had  nothing  to  do  with 
that  judgment.     They  had  a  right  to  decree  on  the  account  before 
them,  and    had    no  right    to  order    payment  of   costs  incurred  in 
another  court.     It  may  be  well  enough  to  mention,  that  it  appears 
to  have  been  the  object  of  the  appellees,  by  their  proceedings  in  the 
Orphans'  Court,  not  to  obtain  payment  by  the  process  of  that  court, 
but  to  enable  themselves  to  recover  on  a  bond,  which  the  adminis- 
trator had  given,  with  security,  by  order  of  the  court,  when  he  had 
obtained  permission  to  sell  part  of  the  real  estate,  the  condition  of 
which  bond  was,  that  the  proceeds  of  sale  should  be  paid,  accord- 
ing to  the  decree  of  the  Orphans'1  Court — so  that  without  a  de- 
cree there  would  have  been   difficulty  in   recovering  on  the  bond. 
Upon  the  whole,  it  is  our  opinion,  that  the  decree  of  the  Orphans' 
Court  should  be  reversed,  so  far  as  it  orders,  that  the  administrator 


Mv.  1822.]  OF  PENNSYLVANIA.  .  137 

(Flintham,  appellant  ».  Forsylhe  and  wife,  Appellees,  and  Same  v.  L'Amy  and  wire, 

Appellees.) 

shall  pay  to  the  appellees,  the  costs  of  suit,  in  the  district  court  for 
the  City  and  County  of  Philadelphia,  to  wit,  the  sum  of  26  dol- 
lars and  50  cents,  and  that  the  residue  of  the  said  decree  be  affirmed.  < 

Decree  reversed  as  to  the  costs  of  suit,  and  affirmed  as  to  the 
residue. 


Philadelphia,  Dec.  33,  1822.] 
DAVIS,  Assignee  of  Morrison,  against  BARR  and  another. 


IN  ERROR. 

A  party,  on  taking  a  bond  and  warrant,  agreed,  by  a  separate  writing,  not  to  enter 
up  judgment,  nor  get  it  d>ne  by  any  body  else.  He  afterwards  assigned  to  another 
for  a  valuable  consideration,  wiihout  notice  of  the  agreement,  who  entered  up 
judgment. 

Held.  1st,  That  the  judgment  was  valid. 

2d,  That  the  obligee  was  a  good  witness  to  prove,  that  the  assignee  had  no  notice  of 
the  agreement. 


Error  to  the  Court  of  Common  Pleas  of  Chester  County. 

On  the  4th  March,  1816,  a  bond  and  warrant  of  attorney  were 
executed  by  the  defendants,  John  Barr  and  Conrad  Barr,  in  fa- 
vour of  John  Morrison,  in  the  penal  sum  of  2,200  dollars,  condi- 
tioned for  the  payment  of  1100  dollars  on  the  20th  August,  1817. 
On  the  30th  March,  1816,  John  Morrison,  by  indorsement  on  the 
bond  and  warrant,  assigned  the  same  to  the  plaintiff,  Ellis  Davis, 
who  procured  judgment  to  be  entered  up,  on  the  16th  April,  1816, 
in  the  Court  of  Common  Pleas  of  Chester  County.  On  motion  of 
the  defendants  in  the  court  below,  to  set  aside  this  judgment,  as  im- 
properly entered,  the  court  directed  an  issue,  which  was  tried  by 
jury  before  Halloyvell,  President,  at  a  special  court,  and  a  ver- 
dict was  rendered  for  the  defendants. 

On  the  trial,  the  defendants  offered  to  give  in  evidence,  an  agree- 
ment, or  memorandum  in  writing,  signed  by  John  Morrison,  on 
the  day  of  the  date  of  the  bond,  in  these  words : 

This  is  to  serty,^)  that  I  am  never  to  enter  the  bonds  that  I  have 
against  John  Barr  and  his  father  Conrad  Barr,  in  the  office  at 
Westchester,  nor  get  it  done  by  any  body  else. 

John  Morrison, 
March  the  4th,  1816. 
Witnesses  present. 

Conrad  Bar?', 

William  Morgan. 

(a)  So  in  the  original. 
VOL.  IX.  S 


138  SUPREME  COURT  [Philadelphia, 

(Davis,  Assignee  of  Morrison  v.  Barr  and  another.) 

This  evidence  was  objected  to  by  the  plaintiff,  but  the  court  ad- 
mitted it,  and  the  plaintiff  tendered  a  bill  of  exceptions. 

The  plaintiff  offered  John  Morrison,  the  obligee,  as  a  witness  on 
*  his  behalf,  and  the  defendants  examined  him  upon  his  voir  dire. 
He  stated,  that  he  had  no  interest  in  this  cause,  and  was  therefore 
sworn  in  chief.  On  his  examination  in  chief,  he  stated,  that  he  had 
assigned  the  bond  without  informing  the  plaintiff  of  the  agreement, 
not  to  enter  judgment.  The  court,  on  the  disclosure  of  this  fact, 
declared  Morrison  an  incompetent  witness,  and  rejected  his  testi- 
mony, and  the  plaintiff  excepted. 

The  court  charged  the  jury,  that  the  plaintiff  took  from  Morri- 
son the  assignment  of  the  bond  and  warrant,  subject  to  every  equi- 
table consideration  and  agreement,  to  which  they  were  subject  in 
the  hands  of  the  original  obligee.  That  if,  before  he  took  the  as- 
signment, he  had  inquired  of  the  obligor,  he  would  have  been  in- 
formed by  him  of  the  agreement,  not  to  enter  judgment  thereon  in 
Chester  County.  That  every  man  who  takes  an  assignment  of  a 
bond  in  Pennsylvania,  if  he  wishes  to  be  safe,  must  make  such 
inquiry  before  he  takes  it.  The  plaintiff,  therefore,  being  bound  by 
the  agreement  proved,  the  judgment  entered  was  irregular  and 
invalid  ;  and  of  course,  the  verdict  ought  to  be  for  the  defendants. 
On  one  of  the  points  proposed  by  the  plaintiff,  the  court  concurred 
therein,  that  the  assignment  of  the  bond  to  Davis,  was  not  a  viola- 
tion of  the  agreement,  but  that  the  operation  of  that  agreement  was, 
to  prevent  the  plaintiff  from  entering  the  judgment  in  Chester 
County. 

To  this  charge  the  plaintiff  excepted. 

Edwards  for  the  plaintiff  in  error. 

1st.  The  first  question  is,  whether  the  paper  signed  by  Morrison, 
and  delivered  by  him  to  Barr,  was  admissible  in  evidence.  We 
contend,  that  it  was  not,  because  it  was  the  admission  of  parol  evi- 
dence, to  vary  an  instrument  under  seal.  The  principle  is  well 
settled,  that  in  an  action  on  a  bond,  a  party  will  not  be  permitted 
to  show  a  condition  different  from  that  expressed  in  the  bond.  1 
Phill.  Evid.  424.  In  Skinner  v.  Henderson,  1  Root.  252,  parol 
evidence  was  not  allowed  to  show,  that  a  specialty  was  delivered  to 
the  party  on  certain  conditions.  To  the  same  point  are  Paine  v. 
M'Intire,  1  Mass.  Rep.  69.  10  Mass.  Rep.  244.  Jltkinson  v. 
ScoWs  Ex  ecntors,  1  Bay.  307.  Toivnsend  v.  Weld,  8  Mass.  Rep. 
146.  The  plaintiff,  in  the  present  instance,  having  paid  the  value 
is  a  purchaser  for  a  valuable  consideration  without  notice. 

2d.  Was  Morrison  a  competent  witness  ?  He  was  examined, 
by  the  defendants  on  his  voir  dire,  and  declared  that  he  had  no  in- 
terest :  after  such  declaration,  he  could  not  be  proved  to  be  interest- 
ed by  evidence  aliunde.     1  Phill.  Evid.  96. 

The  court  intimated,  that  this  point  was  settled.  You  cannot 
after  examining  a  witness  on  his  voir  dire,  produce  evidence  to 
prove  him  interested  :  but  if  it  comes  out  in  the  course  of  the  exa- 


Dec.  1823.]  OF  PENNSYLVANIA.  139 

(Davis,  Assignee  of  Morrison  v.  Barrand  another.) 

ruination  of  the  witness,  that  he  is  interested,  the  court  will  reject 
him. 

Edwards  then  relinquished  that  point,  but  insisted,  that  the  wit- 
ness was  not  interested.  To  constitute  such  an  interest  as  will  dis- 
qualify a  witness,  it  must  be  a  legal,  fixed  interest,  not  a  remote  or 
contingent  one  :  for  this  only  affects  his  credit.  1  Pliill.  Eold.  39. 
Stockholm  v.  Jones,  10  Johns.  21.     Stewart  Kip,  5  Johns.  256. 

There  was  nothing  in  Morrison's  evidence,  to  show  a  fixed,  de- 
terminate interest.  No  objection  was  made,  until  he  had  acknow- 
ledged, that  he  had  not  disclosed  the  private  agreement.  Why  did 
he  not  disclose  it  1  Because,  as  we  contend,  he  thought  the  agree- 
ment was  at  an  end :  and  if  so,  it  absolves  him  from  a  charge  of 
fraud  on  Davis,  or  liability  to  Davis,  in  case  Davis  failed  in  esta- 
blishing the  judgment.  The  agreement  itself  may  be  considered 
as  fraudulent,  if  it  enabled  the  obligee  to  defraud  third  persons. 
But  the  operation  of  this  agreement  was  confined  expressly  by  its 
terms,  to  the  original  parties :  it  does  not  extend  to  an  assignee  of 
the  bond  and  warrant,  and  a  judgment  entered  by  him  is  valid. 
The  charge  of  the  court  was,  therefore,  incorrect  in  stating,  that 
the  assignee  stood  in  the  place  of  the  obligee,  and  took  the  bond 
subject  to  all  the  equities  to  which  the  obligee  was  liable. 

Tilghman,  contra. 

The  honesty  and  equity  of  the  case,  and  the  agreement  of  the 
parties,  are  in  favour  of  the  defendants.  The  agreement  bears  the 
same  date  with  the  bond  ;  it  was  signed  and  executed  at  the  same 
time;  and  before  the  same  witnesses,  and  was  one  of  the  considera- 
tions on  which  the  bond  was  given.  It  ought  to  be  considered  as 
inserted  in  the  bond.  The  effect  cannot  be  destroyed  by  the  cir- 
cumstance of  its  not  being  under  seal :  there  is  no  magic  in  a  seal. 

1st.  The  first  question  is  whether  in  Pennsylvania,  under  the 
circumstances  of  the  case,  this  paper  was  proper  evidence  to  be 
presented  to  the  jury.  Since  the  case  of  Hirst  v.  Kirkbride,  1  Binn. 
616,  parol  evidence  has,  uniformly  been  received,  of  what  passed 
at  the  execution  of  a  deed,  to  explain,  vary  and  control  sealed  in- 
struments, provided  it  be  by  circumstances  occurring  at  the  time, 
and  in  the  presence  of  the  parties.  In  proof  of  which,  may  be 
mentioned,  among  others,  the  cases  of  Thompson  v.  White,  1  Dall. 
424.  Field  v.  Biddle,  2  Dall.  171.  1  Yeates,  132.  S.  C.  MMinn 
v.  Owen,  2  Dall.  173.  1  Yeates,  135.  S.  C.  Cozens  v.  Stevenson, 
5  Serg.  4*  Rawle,  421.  It  is  a  clear  case  of  fraud,  if  a  paper  be 
obtained  for  one  purpose,  and  used  for  another,  Birchfield  v.  Cas- 
tleman,  Add.  181.  If  a  party  be  drawn  in  by  assurances,  or  pro- 
mises to  execute  a  writing,  equity  will  grant  relief.  1  Vern.  296. 
The  plaintiff  can  blame  no  one  but  himself.  It  is  the  duty  of  every 
person,  about  to  take  an  assignment  of  a  bond,  to  go  to  the  obligor, 
and  ascertain  whether  there  is  any  equitable  claim  against  it. 

2d.  Morrison's  evidence  was  properly  rejected.  If  the  cause 
were  decided  in  favour  of  the  plaintiff,  by  his  evidence,  he  over- 
threw a  written  instrument  signed  by  himself,  and  escaped  with 


140  SUPREME  COURT  {Philadelphia, 

(Davis,  Assignee  of  Morrison  v.  Barr  and  another.) 

impunity.  The  verdict  would  relieve  him  from  responsibility  to 
Davis,  for  fraudulently  concealing  the  agreement.  Whereas  if  the 
verdict  were  for  the  defendants,  he  was  answerable  over  to  Davis, 
for  the  debt,  and  for  the  costs  which  had  been  incurred. 

As  to  the  charge  of  the  court,  it  is  excepted  to  because  the  court 
told  the  jury,  that  the  assignee  took  the  bond  subject  to  every  equi- 
ty between  the  obligor  and  obligee  ;  that  the  assignee  stood  in  the 
place  of  the  obligee :  that  the  assignee  was  bound  by  the  agree- 
ment of  the  obligee.  The  principles  laid  down  by  the  court  are 
supported  by  the  cases  determined  in  this  state.  In  Inglis  v.  In- 
ghs's  Executors,  2  Dall.  49,  the  court  say,  that  if  the  obligee  of  a 
bond  assigns  it,  notice  ought  to  be  given  to  the  obligor,  in  order  to 
prevent  his  paying  the  money  to  the  person  who  has  thus  parted 
with  his  interest.  From  this  case  it  is  apparent,  that  it  is  not  in- 
cumbent on  the  obligor  to  seek  for  the  assignee,  but  it  is  the  duty 
of  the  assignee  to  inquire  of  the  obligor  what  equities  he  has :  and 
this  is  the  only  mode  which  can,  in  ordinary  cases,  be  pursued. 
The  obligor  cannot  know  to  whom  the  bond  may  be  assigned  :  but 
the  assignee  must  always  know  who  is  the  obligor,  and  in  this  state 
the  law  obliges  him  to  inquire,  and  if  he  does  not,  construes  such 
omission  to  be  laches  on  his  part.  In  Rundle  v.  Ettiucin,  2  Yeates, 
23,  the  assignee  of  a  bond,  without  notice,  is  considered  as  standing 
in  the  place  of  the  obligee.  If  the  present  case  be  viewed  as  a 
case  between  the  defendants  and  Morrison,  no  court  could  say  that 
Morrison  could  enter  judgment  in  violation  of  his  agreement.  In 
Solomon  v.  Kimmel,  5  Binn.  232,  it  was  determined,  that  the  as- 
signee of  a  bond  takes  it  subject  to  all  the  equity  which  the  obli- 
gor had  against  the  obligee,  unless  the  obligor  promoted  the  assign- 
ment :  and  therefore  in  a  suit  by  the  assignee,  the  obligor  may, 
under  the  plea  of  payment,  show  that  the  bond  was  given  for  lands 
to  which  the  obligee  had  no  title.  In  Bury  v.  Hartman,  4  Serg. 
ty  Raivle,  175,  a  payment  made  by  the  obligor  to  the  obligee 
before  notice  of  the  assignment  was  held  good  against  the  assignee. 

J.  R.  Ingersoll,  in  reply.  As  to  the  competency  of  Morrison  as 
a  witness,  it  is  true,  that  if  it  came  out  in  any  part  of  his  testimony 
that  he  was  interested,  the  court  did  right  to  reject  him.  But  he 
was  not  interested,  or  if  interested,  he  would  be  equally  interested, 
let  the  cause  terminate  as  it  may.  He  would  be  liable  to  an  ac- 
tion by  the  plaintiff  or  defendant,  whatever  might  be  the  result. 

But  in  truth,  the  agreement,  such  as  it  was,  was  confined  to  the 
obligee,  and  did  not  extend  to  an  assignee. 

As  to  the  questions  of  admitting  parol  evidence,  or  papers  of  an 
inferior  character,  to  vary  contracts  under  seal,  courts  of  law  do 
not  admit  them,  and  the  question  is,  would  a  court  of  equity  admit 
them  in  such  a  case  as  this.  There  was  neither  fraud,  mistake, 
nor  trust;  or  if  there  were  fraud,  it  was  practised  not  by  the  as- 
signee, but  against  them.  The  error  into  which  the  plaintiff  was  led, 
was  owing  to  the  conduct  of  the  Bans  themselves,  in  resorting,  to 


Dec.  1822.]  OF  PENNSYLVANIA.  141 

(Davis,  Assignee  of  Morrison  v,  Barr  and  another.) 

a  secret  instrument  of  writing,  instead  of  placing  the  agreement  in 
the  warrant  itself.  That  memorandum  might  have  been  introduced 
into  the  warrant,  and  if  it  has  been  omitted  by  them,  fraudu- 
lently or  otherwise,  no  court  of  equity  would  relieve  against  the 
judgment.  Its  being  in  writing  is  nothing.  It  was  distinct  from 
the  bond,  and  inferior  in  its  nature:  and  its  object  was  to  contradict 
the  power  of  attorney  in  an  essential  point. 

The  sanction  of  such  an  agreement  would  tend  to  encourage 
fraud  and  litigation.  The  defendants  have  no  equity,  for  they 
ought  not  to  have  resorted  to  this  secret  agreement.  It  is  objected, 
that  the  assignee  ought  to  have  given  notice  of  the  assignment  to 
the  obligor.  He  is  not  bound  to  give  notice  ;  but  if  he  does  not,  he 
runs  the  risk  of  payment  being  made  to  the  obligee. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  We  commonly  say  that  the  assignee  of  a  bond,  un- 
der our  act  of  assembly,  takes  it  subject  to  every  equity  which 
might  have  been  set  up  against  it  in  the  hands  of  the  obligee  :  but 
this,  however  generally  true,  is  to  be  understood  with  some  restric- 
tion. The  rule  established  in  Wheeler  v.  Hughes,  has  never  been 
carried  further  than  to  put  the  assignee  in  the  place  of  the  obligee 
as  to  defalcation  and  leant  of  consideration  ;  and  that  it  has  been 
carried  even  so  far,  is  owing  to  the  special  wording  of  the  act, 
which  enables  the  assignee  to  recover  only  "  so  much  as  shall  ap- 
pear to  be  due  at  the  time  of  the  assignment."  Had  it  not  been 
for  this,  I  apprehend  the  assignee  would  not  have  been  affected  by 
any  transaction  between  the  original  parties ;  for  it  certainly  is  not 
a  general  principle  of  equity  that  a  purchaser  for  valuable  consider- 
ation, of  the  legal  title  to  any  kind  of  properly,  should  take  it  sub- 
ject to  an  equity  of  which  he  had  not  notice:  and  as  to  policy,  I 
much  doubt  whether  it  would  not  have  conduced  to  fair  dealing  if 
our  bonds  and  notes  had,  in  this  respect,  been  put  on  a  footing  with 
promissory  notes  under  the  statute  of  Jinn.  We  are  however  to 
take  the  law  as  we  find  it;  and  as  to  want  of  consideration  or  set- 
off", it  is  certain  that  where  there  has  been  no  fraud  on  the  part  of  the 
obligor,  the  assignee  stands  on  no  better  ground  than  that  on  which 
the  obligee  stood.  To  exclude  all  transactions  between  the  origi- 
nal parties,  it  is  necessary  that  it  should  appear  the  assignee  took 
the  assignment  at  the  instance  of  the  obligor,  or  at  least  that  the 
latter  stood  by  with  full  knowledge  of  his  rights,  and  without  dis- 
closing them.  But  with  any  agreement  between  the  original  par- 
ties, inconsistent  with  the  purport  or  legal  effect  of  the  instrument, 
the  assignee  has  nothing  to  do.  No  such  agreement  is  within  the 
purview  of  the  act ;  and  the  assignee  is  not  bound  to  call  on  the 
obligor  for  information  about  matters,  the  existence  of  which  he 
has  no  reason  to  suspect ;  the  necessity  of  inquiry  being  limited  as 
I  have  said  to  want  of  consideration  and  set-off.  Then  the  agree- 
ment here,  was  that  the  obligor  would  not  enter  up  judgment  in 


142  SUPREME  COURT  [Philadelphia, 

(Davis,  Assignee  of  Morrison  v.  Barr  and  another.) 
Chester  county  ;  which  in  no   respect  affected  the  existence  of  the 
deed,  but  was  collateral  to  it.    The  warrant  of  attorney  was  annexed 
to  the  instrument  or  incorporated  with  it,  (no  matter  which,)  and  the 
right  of  directing-  the  exercise  and  application  of  the  power  under  it, 
passed  by  the  assignment  as  an  incident  of  the  property  in  the  debt. 
At  law,  the  agreement  not  being  under  seal,  was  no  revocation  of 
the  power,  although  it  was  a  revocation  in  equity  ;   and  to  obtain 
relief  against  the  judgment  as  an   incumbrance,  it  would  be   neces- 
sary for  the  obligors  to  go  into  chancery  for  a  perpetual  injunction 
against  having  execution  of  the  land.     On  what  ground  of  equity 
would  they  claim  this  against  an  assignee  for  a  valuable  considera- 
tion and  without  notice  ?     The  bond  was  made  assignable  in  express 
terms  ;  and  it  would  seem,  from  the  evidence,  the  obligors  knew  that 
the  obligee  intended  to  raise  money  on  it.     Taking  such  an  engage- 
ment and  enabling  the  obligee  successfully  to  hold  out  the  appear- 
ance of  a  state  of  things  which  had  no  existence  in  fact,  was  very 
like  a  fraud;  and  I  am  satisfied  that  judgment  was  well  entered  up 
by  the  assignee,  and  that  it  is  a  lien  on  the  land  of  the  obligors. 

As  to  the  competency  of  the  obligee  as  a  witness,  it  is  difficult  to 
see  what  interest  he  had  to  exclude  him.  He  was  not  liable  to  the 
assignee,  and  he  therefore  got  rid  of  no  responsibility  by  promoting 
a  recovery  in  this  suit. 

Judgment  reversed  and  a  venire  do  novo  awarded. 


[Philadelphia,  Dec.  30,  1822.] 
SMITH  and  another  against  BLACK. 

IN  ERROR. 

A  judgment  recovered  against  one  partner  is  a  bar  to  a  subsequent  suit  against  both, 
though  the  new  defendant  was  a  dormant  partner  at  the  time  of  the  contract, 
and  was  not  discovered  till  after  the  judgment. 

This  was  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  in  a  suit  brought  by  John  Black  against 
Neivbery  Smith  and  Nathan  Smith,  in  which  that  court  rendered 
judgment  for  the  plaintiff  below. 

The  first  count  of  the  declaration  was  on  a  promissory  note  signed 
N.  Smith,  drawn  by  Nathan  Smith  in  favour  of  and  indorsed  by 
J.  Rogers,  delivered  by  Nathan  Smith  to  the  plaintiff  Black  in 
payment  for  goods  sold.  The  second  and  third  counts  were  for 
goods  sold.  The  defendants  pleaded  in  bar  to  the  first  count  a 
former  recovery  by  the  plaintiff  in  a  suit  on  the  same  note  against 
Nathan  Smith,  in  the  District  Court,  and  that  the  judgment  therein 
remained  in  full  force  and  effect.  In  bar  to  the  second  and  third 
counts  they  pleaded  the  same  judgment,  and  that  the  note  was  re- 
ceived in  discharge  of  the  claim  for  goods  sold.     The  plaintiff  re- 


Dec.  1822.]  OF  PENNSYLVANIA.  143 

(Smith  and  another  v.  Black.) 

plied  to  the  plea  in  bar  to  the  first  count  that  when  the  note  was 
given,  the  said  Newberi-y  and  Nathan  were  partners  in  trade,  car- 
rying on  business  under  the  firm  of  N  Smith,  the  said  Newbery 
being  a  dormant  partner,  and  that  the  same  was  unknown  to  the 
plaintiff'  till  after  the  judgment  recovered  against  Nathan,  and  that 
the  note  was  given  for  a  debt  contracted  in  the  purchase  of  goods 
delivered  by  the  plaintiff  on  account  of  the  partnership  business. 
In  reply  to  the  plea  in  bar  to  the  second  and  third  counts,  the 
plaintiff's  averred  the  same  facts,  and  denied  that  the  note  was  re- 
ceived in  discharge  of  the  claim  for  goods  sold.  Demurrer  and 
joinder. 

Rawle,  for  the  plaintiffs  in  error  cited,  Williams  v.  M'Fall,  2  Serg. 
fy.  Rawle,  280.  Robertson  v.  Smith,  18  Johns.  459.  Whitman  v. 
Ely,  4  Serg.  8f  Rawle,  454.  Penny  v.  Martin,  4  Johns.  Ch.  566, 
Willing  v.  Consequa,  1  Peters,  301.     Ross  v.  Deey,  7  T.  R.  361. 

E.  S.  Sergeant  and  T.  Sergeant,  contra,  referred  to  Sheehy  v. 
Mandeville,  6  Cranch.  253.  5  Taunt.  609.  Mildmay's  Case,  6  Co. 
40.  Bantleon  v.  Smith,  2  Binn.  148.  Gordon  v.  Correy,  5  Binn. 
550.  Ingham  v.  Noke,  1  Wils.  89.  Tooker  v.  Bennet,  3  Caines, 
304.  1  Chitty's  Plead.  30.  5  Johns  10.  3  Johns  Cases,  7 1 .  Drake 
v.  Mitchell,  3  .Easf.  350.  Lang  v.  Keppele's  executors,  1  5m/i.  124. 
Higgin's  Case,  6  Co.  45.     5  J5.  &f  P.  474. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  By  agreement  of  parties,  all  objections  as  to  the 
form  of  pleading  are  waived,  and  the  cause  is  to  be  decided  on  its 
merits.  The  case  then  is  this.  John  Black,  the  defendant  in  error, 
sold  certain  goods  to  Nathan  Smith,  one  of  the  plaintiffs  in  error, 
and  took  his  note,  which  he  put  in  suit,  and  prosecuted  to  judgment, 
on  which,  however,  he  has  obtained  no  satisfaction.  Afterwards, 
supposing  Newberry  Smith,  the  other  plaintiff  in  error,  to  be  a 
secret  partner,  he  instituted  this  action  against  both.  It  is  to  be 
taken  for  granted,  that  when  the  goods  were  sold,  the  note  given, 
and  judgment  obtained,  the  fact  of  Newberry  being  a  dormant  and 
secret  partner  was  unknown  to  the  defendant  in  error  ;  and  that  the 
goods  for  which  the  note  was  given,  were  bought  on  account  of 
the  partnership.  If  the  action  can  be  supported,  it  excites  our 
wonder,  that  in  a  matter  which  must  so  frequently  have  occurred, 
no  trace  of  the  doctrine  is  to  be  found  in  the  works  of  any  author, 
nor  precedent  in  any  book  of  reports  ;  and  this  silence,  though  it  is 
not  conclusive,  yet  it  affords  cogent  proof  against  the  action.  It  is, 
at  least  incumbent  on  the  plaintiff",  to  show  some  clear,  legal  prin- 
ciple, on  which  it  can  be  supported,  and  in  my  humble  judgment, 
as  it  is  without  precedent  to  support  it,  except  one  solitary  decision, 
so  it  is  without  legal  foundation  to  rest  upon.  For  the  first  time, 
the  doctrine  was  broached  was  in  this  country  in  the  year  1810,  in 
the  Supreme  Court  of  the  United  States,  Sheehy  v.  Mandeville,  6 
Cranch.  253.,  and   there  it   was  decided,  "  that  a  several  suit  and 


144  SUPREME  COURT  [Philadelphia, 

(Smith  and  another  v.  Black.) 

several  judgment  against  one  of  two  makers  of  a  promissory  note, 
was  no  bar  to  a  joint  action  against  both."  This  is  a  precedent 
from  a  very  high  source,  and  commands  great  deference  and  respect, 
from  the  characters  of  the  distinguished  and  enlightened  men  who 
composed  that  court.  Yet  whatever  importance  and  consideration 
we  may  attach  to  all  their  decisions,  they  are  not  in  this  instance, 
binding  authority. 

The  same  question  came  before  Chancellor  Kent,  in  1820,  S.  & 
E.  Penny  v.  Martin  and  others,  4  Johns  Ch.  566.     It  is  the  same 
ease  in  specie  as  the  present.     The  plaintiffs  there  brought  a  suit  at 
law  against  two  partners,  as  partners  in  trade,  under  the  firm  of  R. 
&  M.,  and  recovered  judgment,  from  which  they  were  unable  to 
obtain  satisfaction,  and    afterwards  discovered  for  the    first  time, 
that  R.  L.    &  S.,  three  other  persons,  were  dormant  partners  with 
R.  &  M.,  and  jointly  interested  together  in  the  transaction,  out  of 
which  the  plaintiff's  cause  of  action  arose,  and  the  Chancellor  held, 
he  had  no  jurisdiction  to  give  relief  against  the  dormant  partners.     It 
is  worthy  of  remark,  that  the  case  of  Sheehy  v.  Mandeville,  was  not 
noticed  by  the  Chancellor,  and  though  he  gave  no  express  opinion, 
whether  the  remedy  at  law  was  lost,  yet  from  his  course  of  reasoning, 
and  the  note  to  the  report,  we  clearly  discover  the  impression,  that 
an  action  could  not  be  supported  at  law.     For  in  the  note,  he  men- 
tions the   case  of   Consequa  fy    Willi?ig,  decided  in  1816,  1  Peters 
Rep.  301.  and  said  he  had  not  met  with  any  other  opinion  or  dic- 
tum, that  applied  fully  to  the  question.     Kuhn,  a  dormant  partner 
of  Willing  fy  Francis,  was  offered  as  a  witness,  and  objected  to,  as 
interested,  because   Witting  fy  Francis  had  given  a  note  to  Con- 
sequa,  on  which  they  were  sued,  and  a  verdict  rendered ;  and  it 
was  alleged,  if  Consequa  was  not  able  to  obtain  satisfaction  against 
them,  he  might  afterwards  sue  Kuhn,  as  a  dormant  partner,  and 
Washington  J.  held,  that  a  judgment  on  the  note,  against  Witting 
<§-  Francis,  would  as  completely  extinguish  the  original  debt,  as  if 
they  had  given  a  bond  for  it,  and  that  if  Consequa  brought  an  ac- 
tion against  Kuhn  for  it  separately,  he  might  defeat  it  by  a  plea  in 
abatement,  and  a  judgment  in  favour  of  Consequa,  would  be  a  bar 
against  any  action  he  might  bring  against  the  three  partners,  Wil- 
ling, Francis  fy  Kuhn,  and  the  Judge  denied,  that  though  Con- 
sequa might  have  no  remedy  at  law  against  Kuhn,  that  he  could 
be  relieved  in  equity  by  showing  his  ignorance  that  Kuhn  was  a 
dormant  partner.    This  decision  is  of  immense  weight  here,  where 
we  exercise  a  mixed  jurisdiction  of  law  and  equity,  and  where  if 
it  was  competent  to  a  Court  of  Chancery  to  grant  relief,  this  court 
would  in  some  form  of  action  reach  the  equity.     For  though  our 
courts  of  law  exercise  chancery  powers  by  a  different  medium,  yet 
they  are  as  much  bound  by  rules  of  equity,  as  a  chancellor,  and  will 
never  go  beyond  the  limits  of  chancery  powers.  As  these  are  the 
opinions  of  two  very  learned  Judges,  that  the  action  would  not 
lie  at  law,  nor  relief  be  granted  in  chancery,  and  one  of  them  Mr. 


Dec.  1822.]  OF  PENNSYLVANIA.  145 

(Smith  and  another  v.  Black.) 

Justice  Washington,  who  decided  the  case  of  Sheehy  v.  Mandeville, 
and  in  1821,  the  same  question  was  decided  in  the  same  way  in  the 
Supreme  Court  of  New-York.  Robertson  v.  Smith  and  others, 
18  Johns.  459.  That  case  was  fully  discussed  by  the  counsel,  and 
C.  J.  Spencer,  who  delivered  the  opinion  of  the  court,  embraced  in 
the  comprehensive  view  he  took  of  the  subject,  all  the  authorities 
bearing-  on  the  question,  and  considered  the  decision  of  the  Su- 
preme Court  of  the  United  States,  with  equal  candour  and  ability ; 
expressing-  his  dissatisfaction  with  the  train  of  reasoning  adopted  in 
that  case.  To  his  very  luminous  and  able  arguments,  I  refer  gene- 
rally, as  conveying  my  own  opinions.  To  the  terms  in  which  it  was 
delivered,  I  could  add  no  force,  and  it  would  be  doing  injustice  to  the 
argument  to  attempt  to  abridge  it.  I  will,  therefore,  content  myself 
with  stating  other  reasons  against  this  action.  The  want  of  notice 
is  mainly  urged  as  the  ground  of  the  action.  No  notice,  is  generally 
a  defensive  affirmation.  It  is  used  as  a  shield,  and  not  a  sword.  It 
is  always  a  negative  allegation,  consisting  of  a  denial,  and  not  sus- 
ceptible of  proof.  To  undertake  to  prove  it  against  a  mere  denial, 
would  be  a  dangerous  matter.  As  it  is  used  in  chancery,  it  requires 
the  oath  of  the  party.  But  at  common  law,  and  even  in  our  bleud- 
ed  jurisdiction  of  law  and  equity,  Jiis  opponent  could  not  require  that ; 
and  to  put  him  to  proof  of  the  fact,  the  precise  time  when  notice  was 
given  against  a  naked  allegation,  without  either  oath  or  any  proof, 
would  be  contrary  to  all  law,  and  all  equity,  as  it  would  be  requiring- 
of  him  an  absolute  impossibility. 

The  spark  of  equity  must  be  struck  out  of  the  want  of  notice.  Let 
us  advert  to  the  consequences,  and  see  first  whether  to  allow  this 
would  not  be  departure  from  all  our  legal  notions  of  actions,  either 
in  torts  or  contracts.  In  torts,  the  principle  is  well  settled  ;  if  a  plain- 
tiff has  in  a  former  action  recovered  damages  for  a  battery,  a  judg- 
ment for  them,  he  cannot  afterwards  bring  another  action  for  the 
same  battery,  because  afterwards,  in  consequence  of  it,  he  lost  a 
piece  of  his  skull.  There  is  am  authority  to  show,  that  subsequent 
damages  create  no  new  cause  of  action,  Fetter  v.  Veal,  12  Mod. 
543.  There  the  cause  of  action  arose  from  the  beating,  and  not 
from  the  consequences  which  ensued  from  it.  So  here  the  cause  of 
action  was  created  by  the  breach  of  the  contract,  and  not  by  the  subse- 
quent discovery  that  Newberry  was  a  partner.  The  cause  of  action 
accrued  at  the  moment  there  was  a  breach  of  the  contract :  the  subse- 
quent discovery  gave  no  new  substantive  cause  of  action.  If  the 
consequence  of  a  tort  gave  a  new  cause  of  action,  then  the  statute  of 
limitations  would  only  accrue  from  the  time  it  was  discovered,  and 
so  in  contracts,  the  discovery  of  a  new  party,  or  some  occult  matter 
which  produced  a  subsequent  damage,  would  give  a  new  cause  of 
action.  Now  all  this  is  contrary  to  every  received  opinion  with  re- 
spect to  judgments.  No  principle  is  better  settled  than  that  a  judg- 
ment once  rendered  absorbs  and  merges  the  whole  cause  of  action, 
and  that  neither  the  matter,  nor  the  parties,  can  be  severed,  unless 

VOL.   IX.  1 


146  SUPREME  COURT  [Philadelphia, 

(Smith  and  another  v.  Black.) 

indeed  where  the  cause  of  action  is  joint  and  several,  which  certainly 
actions  against  partners  are  not.  Transit  in  re??%  judical  am. 
There  might  be  a  recovery  at  the  end  of  sixty  years.  The  right  of 
action  would  never  be  closed  by  any  delay  or  any  number  of  judg- 
ments. The  rem  judicata??!  would  never  close,  but  be  a  wound 
never  healed,  opening  on  every  new  discovery  of  a  party.  It  would 
indeed  be  the  everlasting  suit.  As  suppose  there  were  ten  partners, 
nine  of  them  dormant,  from  A.  to  L  ;  A.,  the  ostensible  partner  is 
first  sued,  judgment  obtained,  but  no  satisfaction.  At  the  end  of  six 
years  B.  is  discovered,  sued,  and  judgment  against  him,  with  A.  and 
so  on  every  sixth  year,  until  there  are  ten  actions  and  ten  judgments 
on  one  original  action.  For  if  the  argument  is  worth  any  thing,  it 
goes  to  the  full  extent,  that  as  soon  as  a  new  partner  is  discovered, 
a  new  cause  of  action  arises,  and  so  on  ad  infinitum.  It  is  by  put- 
ting an  extreme  case,  the  solidity  of  any  position,  the  soundness  of 
any  argument  is  tcsled.  For  if  it  will  not  answer  in  every  case,  no 
dependence  can  be  placed  on  it.  When  the  law  says,  that  limita- 
tion only  runs  from  the  time  of  discovery  of  a  fraud,  and  that  no 
length  of  time  will  protect  a  fraud,  it  proceeds  on  a  different  princi- 
ple, than  want  of  notice.  It  is  on  the  ground  of  actual  fraud,  prac- 
ticed by  one  contracting-  party  on  another.  But  in  the  case  of  a  dor- 
mant partner,  there  is  no  actual  fraud  committed  on  the  vendor ;  he 
does  not  give  credit  under  the  belief  that  there  is  a  secret  partner. 
If  he  did,  then  as  to  him  there  was  no  dormant  partner.  Ignorance 
of  a  fact  will  not  render  a  transaction  fraudulent.  It  is  the  con- 
cealment of  a  fact,  which  if  it  had  been  communicated,  and  was  the 
duty  of  the  party  to  communicate,  the  other  would  not  have  entered 
into  the  contract ;  but  this  never  can  apply  to  latent  partnerships. 
Black  never  inquired  whether  Nathan  Smith-  had  partners  ;  he 
gave  the  whole  credit  to  him.  Besides,  on  whom  are  the  costs  of 
the  different  actions  to  be  levied  ?  Are  they  to  be  recovered  from  the 
parties  to  each  action,  or  to  be  accumulated  and  fall  on  the  heads  of 
the  ten  defendants  in  the  tenth  action  ?  I  am  of  opinion,  that  the  law 
will  not  suffer  this  splitting  up  either  of  actions  or  severing  of  persons, 
and  that  where  the  cause  of  action  is  a  joint  one,  that  a  judgment 
once  rendered,  extinguishes  the  original  cause  of  action,  and  is  a 
bar,  not  only  to  a  subsequent  action  brought  against  the  same  persons, 
but  against  all  others  ;  that  the  judgment  puts  an  end  to  all  litiga- 
tion on  the  subject  matter  of  the  action,  and  that  a  discovery  of  a 
neiv  party,  or  the  happening  of  new  damages  does  not  give  a  new 
cause  of  action,  and  the  judgment  should  be  reversed  and  judgment 
rendered  for  the  defendants. (a) 

Judgment  reversed  and  judgment  rendered  for  the  defendants. 

(a)  Note  by  Duncan,  J.  Since  this  opinion  was  delivered,  I  find  that  in  1816,  the 
same  point  was  decided  in  the  Supreme  Court  of  Massachusetts  :  Asa  Ward  v.  Henry 
and  Thomas  Johnson,  13  Mass.  148.  It  was  there  determined,  that  to  an  action  against 
two  on  a  joint  promise,  the  plea  of  a  former  judgment  against  one  of  them,  upon 
the  samp  promise,  was  a  good  har.     There  too  Thomas  was  a  dormant  partner,  and 


Dec.  1822.]  OF  PENNSYLVANIA.  147 


[Philadelphia,  Dec.  30,  1822  ] 

The  United  States  against  EDME. 

A  witness  attending  before  a  magistrate  to  give  his  deposition  under  a  rule  of  th:s 
court,  in  a  suit  depending,  will  be  discharged,  if  arrested  on  his  return  from  the 
magistrates  office,  under  a  writ  from  the  District  Court  of  the  United  States,  in  a 
suit  for  penalties. 

Such  application  may  be  made  in  the  absence  of  the  defendant,  and  after  bail 
given. 

This  was  a  rule  to  show  cause,  why  the  defendant,  John  Edme, 
should  not  be  discharged  from  the  custody  of  John  Conrad,  Esq. 
marshal  of  the  United  States  for  this  district,  granted  on  the  affi- 
davit and  application  of  Phillips,  the  defendant's  attorney. 

A  capias  ad  respondendum  in  debt,  for  10,000  dollars  for  penal- 
ties, had  been  issued  at  the  suit  of  the  United  States  against 
Edme,  from  the -District  Court  of  the  United  States  for  this  district, 
in  which  bail  was  marked  in  15,000  dollars.  He  was  arrested  by 
the  marshal  on  this  writ,  whilst  he  was  returning  from  his  atten- 
dance on  a  magistrate,  before  whom  he  had  made  a  deposition  as  a 
witness  in  the  case  of  Gravelle  v.  Gouiram,  depending  in  this 
court  under  a  rule  to  take  depositions.  The  marshal  was  in  the 
justice's  office  during  the  examination  of  the  witness,  but  did  not 
arrest  him  until  after  he  had  left  the  office.  Edme  had  given  bail 
to  the  marshal,  and  an  application  was  made  to  the  District  Court 
of  the  United  States,  to  reduce  the  amount,  but  that  court  re- 
fused it.     He  had  now  left  the  state. 

Phillips,  in  support  of  the  rule,  contended,  that  the  privilege  of 
witnesses  from  arrest  eundo,  morando,  et  redeundo,  was  well  esta- 
blished, as  was  also  the  authority  of  the  court  against  whom  the  con- 
tempt was  committed  to  discharge  them  on  motion:  and  there  is 
no  difference  whether  they  attend  voluntarily  or  on  subpoena,  or 
whether  it  is  an  attendance  in  court,  before  an  arbitrator,  com- 
missioners of  bankrupt,  or  elsewhere  in  the  course  of  justice,  if  it 
be  bona  fide.  1  Tidd's  Prac.  174:  5  Bac.  Ab.  718.  This  pri- 
vilege, which  is  the  privilege  of  the  court,  is  extended  to  the  case 
of  parties.  T.  Hurst's  Case,  4  Dull.  387.  Barnes'  Arotes  276. 
The  rule  to  take  depositions  was  regularly  entered  pursuant  to  the 
provisions  of  the  act  20th  March,  1810,  Purd.  Dig.  17.  There 
is  no  prerogative  in  the  United  States,  in  an  ordinary  action  of 
debt  for  penalties,  that  can  exempt  them  from  a  liability  to  these 
principles,  nor  in  the  courts  of  the   United  States,  by  which  the 

at  the  commencement  of  the  first  action,  was  unknown  to  the  plaintiff,  and  Wilde, 
Justice,  who  delivered  the  opinion  of  the  court,  said,  that  the  contract  as  far 
as  respects  Henry,  must  be  considered  as  merged  in  the  former  recovery  against 
him,  and  no  instance  had  been  proved,  nor  could  be  found,  of  two  judgments  being 
held  good  against  the  same  person  for  the  same  cause  of  action. 


148  SUPREME  COURT  [Philadelphia, 

(The  United  Stales  v.  Edme.) 
power  of  the  state  courts  is  in  this  respect  controlled  or  diminished. 
On  the  contrary,  the  act  of  congress  of  the  2d  March,  1799,  sect. 
65.  (Ing.  Dig.  233.)  expressly  provides  that  in  all  cases  in  which 
suits  or  prosecutions  shall  be  commenced  for  the  recovery  of  du- 
ties or  pecuniary  penalties  prescribed  by  the  laws  of  the  United 
States,  the  persons  against  whom  process  may  be  issued,  shall  and 
may  be  held  to  special  bail,  subject  to  the  rules  and  regulations 
which  prevail  in  civil  suits  in  which  special  bail  is  required. 

C.  J.  Iwgersoll,  district  attorney  of  the  United  States,  objected 
to  the  defendant's  discharge  on  several  grounds. 

The  application  and  affidavit  were  made  by  the  defendant's  at- 
torney, and  at  the  instance  of  his  bail,  after  the  defendant  had  gone 
beyond  sea,  by  which  he  would,  if  the  discharge  were  to  take  place, 
escape  the  debt.  Besides  an  unsuccessful  application  has  been 
made  to  the  District  Court,  and  the  defendant  has  thereby  admitted 
the  jurisdiction  of  that  court,  and  waived  the  ground  of  privilege. 
Privilege  is  lost  by  the  defendant's  pleading.  2  Roll.  Ah.  275.  In 
Commonwealth  v.  Hambright,  4  Serg.  fy  Rawle,  149,  this  court 
would  not  discharge  a  party  on  habeas  corpus,  on  the  ground  of 
privilege,  after  a  refusal  by  the  court  in  which  the  suit  was 
brought  to  grant  his  application.  The  District  Court  of  the  United 
States,  in  which  the  suit  was  brought,  was  the  proper  authority  to 
apply  to.  The  Common  Pleas  cannot  discharge  a  man  arrested 
by  process  from  the  King's  Bench.  4  Com.  Dig.  476,  Privi- 
lege, 4.  3. 

But  supposing  this  court  the  proper  tribunal  to  act,  there  has  been 
no  contempt  of  this  court.  Edme  had  left  the  magistrate  and  was 
a  mere  volunteer,  not  bound  to  attend  by  any  subpoena  or  process, 
and  therefore  the  privilege  of  the  court  is  not  infringed.  There  is 
no  instance  of  a  volunteer,  not  in  his  own  cause,  who  has  been  pro- 
tected. At  all  events,  it  is  a  privilege  not  available  against  the 
United  States.  It  is  not  available  against  the  crown.  2  Roll.  Ah. 
274.  5  Bar.  Ah.  618.  4  Com.  Dig.  475.  17  Fin.  517.  There 
is  the  same  reason  for  allowing  privilege  to  the  United  States 
as  prerogative  to  the  crown,  namely,  that  the  public  good  requires 
it.  In  the  People  v.  Gilbert,  18  Johns.  227,  it  is  held,  that  the 
government  is  not  bound  by  an  act  of  limitations,  unless  named. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  A  capias  in  debt  had  been  issued  by  the  United  States 
against  John  Edme,  debt  10,000  dollars  for  certain  penalties,  in 
which  bail  was  marked  in  15,000  dollars.  He  was  arrested  by  the 
marshal  on  this  writ,  while  he  was  returning  from  his  attendance 
on  a  magistrate,  before  whom  he  had  made  a  deposition  as  a  wit- 
ness in  the  cause  of  Gravelle  v.  Gouiram,  depending  in  this  court, 
under  a  rule  of  court.  The  marshal  was  in  the  justice's  office 
during  the  examination  of  the  witness,  but  did  not  arrest  him  until 


Dec.  1822.]  OF  PENNSYLVANIA.  149 

(The  United  States  v.  Edme.  ) 

after  he  had  left  the  office.     On  the  affidavit  and  application  of 
Ed?ne,s  attorney,    a    rule    was    granted    to    show    cause,  why  he 
should  not  be  discharged  from  the  arrest.     Cause  was  shown  by 
the  district  attorney:     1st.  Because  the  application   and  affidavit 
were  made  by  Edme1  s  attorney,  and  at  the  instance  of  his  bail.    2d. 
Because  he  was  not  in  actual  custody,  but  had  given  bail  to  the 
marshal,  and  was  now  beyond  the  process  of  the  court  of  the  United 
States,  and  the  application  was  after  an  unsuccessful  attempt  in  the 
District  Court  to  lessen  the  amount  of  bail.     3d.  The  rule  to  take 
depositions  was  not  entered  agreeably  to  law.     4th.  That  his  at- 
tendance   before    the   justice   was   voluntary,   and   not  under    any 
compulsory   order  or  subpoena.      5th.    That  privilege    cannot  be 
claimed  where  the  United  States  are  a  party ;  or  if  it  can  it  is  only 
during  actual  attendance.     The  first  and  second  objections  to  the  dis- 
charge must  be  taken  in  connexion.     The  power  to  discharge  suitors 
and  witnesses  is  necessarily  inherent  in  every  court,  and  though 
the  court   from  which  the  process  issues  may  discharge,  for  the 
abuse  of  their  process  on  the  privileges  of  suitors  and  parties  in  other 
courts,  yet  the  court  on  whom  the  contempt  has  been  committed 
is  the  most  suitable  forum,  and  the  practice  generally  is  to  apply 
there  for  redress.     A  chancellor  exercises  this  authority,  whenever 
the  proceeding  under  which  the  privilege  is  claimed  issues  from 
that   court.     Indeed   some  doubts   have  been   of  late  entertained 
whether  the  application  must  not  be  made  to  that  court,  of  which 
the  arrest  is  a  contempt,  and  I  can  entertain  no  doubt  of  the  power 
of  that  court  to  discharge,  though  the  court  from  which  the  pro- 
cess issues,  have  declined  or  refused  to  discharge,  and  as  this  power 
is  necessary  for  their  own   protection,  it  cannot  depend  on  ano- 
ther tribunal  to  grant  or  withhold   it.     It  is  the  privilege  of  the 
court,  yet  it  is  the  protection  of  the  suitor  or  witness  to  whom  the 
common  law  gave  a  writ  of  privilege  in  that  case,  in  lieu  of  which 
summary  relief  on  motion  is  now  substituted,  and  this  cannot  be 
denied   on   proper   grounds  shown,  for  there  is  no   such  thing  in 
the  law  as  writs  of  grace  and  favour  issuing  from  the  judges:  they 
are  all  writs  of  right  but  not  writs  of  course.      WilmoVs   Opinions 
and  Judgments,  87.     The  giving  a  bail  bond  is  so  far  from  waiving 
the  privilege,  that  the  court  when  they  discharge  will  order  it  to 
be  delivered  up  to  be  cancelled.  The  defendant  is  not  obliged  to  ap- 
ply in  person,  his  bail  or  his  attorney  may.     Nor  must  he  continue 
in  custody,  or  give  up  his  own  lawful  pursuits  and  remain  stationa- 
ry until  the  sitting  of  the  court.     Edme  has  done  no  act  to  waive 
the  privilege.     He  has  neither  imparled  or  pleaded.     The  first  and 
second  objections  are  thus  disposed  of.     There  is  no  weight  in  the 
third.     The  rule  is  regularly  entered;  and  if  it  were  not,  it  lies  not  in 
the  mouths  of  those  who  have  treated  the  process  of  the  court  with 
disregard,  to  say  your  proceedings  were  irregular,  and  we  will  treat 
them  with  contempt.     They  were  not  void.     The  court  had  juris- 
diction, and  it  is  not  for  third  persons  collaterally  to  object  irregu- 


150  SUPREME  COURT  [Philadelphia, 

(Tlic  United  States  v.  Edme.) 

larity.  While  the  rule  stood  on  the  records  of  the  court,  it  was  a 
rule  in  full  life  and  force.  The  fourth  and  fifth  require  more  seri- 
ous consideration. 

The  national  and  state  legislatures,  and  the  national  and  state 
courts  act  wisely  in  evading  all  legislation  and  decisions,  on  the 
delicate  questions  of  clashing  jurisdictions.  Where  State  powers 
end,  and  United  States  authority  begins,  is  difficult  and  tender 
ground,  to  be  trod  over  lightly  and  warily.  It  is  unnecessary  to 
say,  whether  congress  possess  the  constitutional  right  to  deprive 
the  state  courts  of  the  power  of  protecting  themselves  from  con- 
tempts committed  on  their  proceedings,  on  suitors  or  witnesses  ne- 
cessarily attending  the  execution  of  their  orders  and  rules.  They 
have  not  done  so.  The  United  States,  in  certain  cases,  have  by- 
law, a  priority  in  the  payment  of  their  debts  ;  but  I  do  not  acknow- 
ledge any  claim  of  superiority  in  the  remedy  or  execution  of  then- 
process  in  civil  suits  over  those  of  the  citizen.  Even  with  the  pre- 
rogatives of  royalty,  this  is  not  one  possessed  by  the  British  mo- 
narch, whose  process  of  extent  overreaches  the  right  of  his  subjects, 
in  a  manner  not  quite  congenial  to  our  republican  opinions.  Yet 
even  in  that  country,  a  party  attending  a  commission  of  bankrupt, 
was  discharged  from  arrest,  at  the  suit  of  the  crown,  while  he  was 
said  to  be  in  the  actual  performance  of  the  duty  of  going  through 
his  examination,  and  actually  attending  the  commissions  for  that 
purpose,  Cook's  Bank.  Law,  715.  In  the  instance  before  us, 
though  the  Marshal  executed  the  process  with  all  decorum,  yet  it 
cannot  escape  our  observation,  that  he  followed  the  man  into  the 
Justice's  Office,  and  though  he  did  not  actually  arrest  him  in  the 
Justice's  presence,  yet  he  did  so  in  the  very  hour  of  his  examina- 
tion, and  before  the  deposition  was  dry.  I  consider  him  as  much 
protected,  as  if  he  had  been  arrested  just  after  his  examination,  as 
a  witness  in  this  court,  going  out  of  the  hall  of  the  court,  and  having 
passed  the  verge.  Otherwise  the  privilege  would  be  a  mere  mockery, 
and  even  though  the  form  of  the  process  as  attachment  for  contempt 
be  criminal,  and  in  the  name  of  the  United  States,  or  the  state,  if 
it  be  only  to  compel  the  payment  of  money,  the  party  is  protect- 
ed from  arrest ;  and  the  very  act  under  which  bail  was  demanded, 
act  of  Congress,  2d  March,  1799,  shows,  that  the  United  States, 
do  not  assert  such  a  prerogative.  It  provides  that  the  United  States 
may  hold  to  bail  in_  actions  for  penalties,  subject  to  the  rules  and 
regulations  which  prevail  in  other  civil  suits  zvith  respect  to  bail. 
My  decided  opinion  is,  that  in  civil  suits  by  the  United  States, 
there  is  the  same  privilege  to  suitors  and  witnesses,  as  the  law  gives 
in  actions  by  one  citizen  against  another.  It  is  unnecessary  to  re- 
view with  minute  particularity,  the  cases  pro  and  con,  on  this  sub- 
ject of  privilege.  The  clear  principle  is  this  ;  that  protection  to  a 
witness  ought  to  be  at  least  as  extensive,  as  to  a  party  ;  that  when 
it  is  not  a  mere  cover  to  a  skulking  debtor,  it  ought  to  be  consi- 
dered liberally.     Originally,    indeed,  it   embraced  only  attendants 


Dec.  1822.]  OF  PENNSYLVANIA.  151 

(The  United  States  v.  Edme.) 

of  courts ;  but  has  extended  itself  in  process  of  time,  to  every  case 
where  the  attendance  was  a  duty  in  conducting  any  proceedings 
of  a  judicial  nature,  as  commissions  of  bankrupt,  a  Judge  at  his 
chambers ;  and  whatever  doubts  might  have  been  entertained,  as 
to  a  witness  attending  on  arbitrations  under  a  rule  of  court,  he  is 
now  just  as  much  protected  as  a  witness  attending  a  Judge  at  Nisi 
Prius.  It  has  been  carried  still  further  to  a  witness  going  before 
a  Master  in  Chancery  to  make  an  affidavit.  Parties  and  witnesses 
are  privileged  during  attendance  before  referees  on  a  rule  of  sub- 
mission, under  the  act  of  1705,  and  what  affords  this  protection  ?  a 
rule  of  court.  So  here  there  is  an  order  of  court  to  authorize 
taking  the  deposition,  and  the  court  must  necessarily  possess 
the  power  to  protect  from  arrest  all  who  are  necessarily  attending 
the  execution  of  their  own  order.  Nor  is  it  any  objection,  that  the 
witness  did  not  attend  by  compulsion.  The  party  himself  would 
be  protected  during  the  examination,  cundo,  morando,  et  redeundo, 
and  it  is  equally  reasonable,  that  the  witness  whose  examination 
he  was  attending,  should  be  entitled  to  the  same  exemption. 

Rule  made  absolute,  and  John  Edme  discharged  from  the  cus- 
tody of  the  Marshal. 


/  [Philadelphia,  Jan  6,  1823.] 

BEHNCKE  against  KING. 

IN  ERROR. 

If  a  seaman  ship  at  the  port  of  Philadelphia,  and  render  himself  on  board,  and  after- 
wards desert  at  Chester,  on  the  voyage  down  the  river,  the  surety  is  liable  to  the 
forfeiture  imposed  by  the  second  section  of  the  act  of  congress,  of  the  26th  July, 
1790. 

Error  to  the  Court  of  Common  Pleas  of  Philadelphia  County, 
where  judgment  was  rendered  in  favour  of  Charles  King,  the 
plaintiff  below,  against  the  plaintiff  in  error,  John  C.  Behncke,  on 
an  appeal  from  the  judgment  of  Justice  Renshaw.  It  was  an  action 
brought  by  the  plaintiff  below,  Charles  King,  master  of  the  ship 
Recovery,  against  Behncke,  as  surety  for  a  certain  Daniel  Knowl- 
ton,  a  seaman,  who  signed  shipping  articles,  by  which  he  bound 
himself  to  serve  as  a  mariner  on  board  the  Recovery,  on  a  voyage 
from  the  port  of  Philadelphia,  to  Madeira.  Knoidton  rendered 
himself  on  board  according  to  agreement,  and  remained  in  the  ship 
till  she  had  proceeded  on  her  voyage  as  far  as  Chester,  in  the  river 
Delaware,  where  the  ship  being  stopped  by  the  ice,  he  deserted, 
and  did  not  return,  so  that  the  ship  went  to  sea  without  him.  The 
suit  was  brought  under  the  second  section  of  the  act  of  congress  of 
the  20th  July,  1790,  to  recover  the  sum  advanced  to  Knoivlton. 
In  the  Court  of  Common  Pleas,  the  majority  of  the  court  charged 


152  SUPREME  COURT  [Philadelphia, 

(Behnckc  v.  King.) 

the  jury,  that  the  plaintiff  below,  was  entitled  to  recover,  and  the 
defendant  tendered  a  bill  of  exceptions. 

M llvame  for  the  plaintiff^  in  error,  contended,  that  the  seaman 
having  been  on  board  the  ship  when  the  voyage  began,  the  surety 
had  fulfilled  his  obligation,  and  was  no  farther  responsible.     The 
act  of  congress  of  the  26th  July,  1790,  Sec.  2, (a)  provides  for  the 
forfeiture  of  the  sum  advanced  in  two  cases ;  first,  where  the  sea- 
man shall  wholly   neglect  to  render    himself  on    board ;    second, 
where  after  rendering  himself  on  board,  he  deserts,  so  that  the 
vessel  shall  proceed  to  sea  without  him.     The  vessel  proceeds  to 
sea  when  she  begins  her  voyage :  when  she  begins  to  proceed  to- 
wards the  sea.     The  fifth  section  amply  provides  for  the  case  of 
desertion  by  a  seaman  after  the  voyage  has  begun,  by  specific  pe- 
nalties of  a  different  kind,  and  there  is  no  necessity  to  extend  the 
construction  of  the  first  section,  in  order  to  embrace  the  present 
case.     There  is  good  reason  why  the  surety  should  be  discharged 
from  the  moment  the  seaman  renders  himself  on  board ;  for  he  is 
then  under  the  power  of  the  master,  who  may  detain  him ;  or,  if 
he  escape,  enforce  the  penalties  provided  in  the  fifth  section.     In 
Cotel  v.  Hilliar d,  4  Mass.  Rep.  664,  it  is  declared  by  the  court,  that 
the  second  section  of  the  act  of  congress,  intended  the  forfeiture 
expressed  in  it  for  conduct  previous  to  the  commencement  of  the 
voyage :  and  that  in  the  fifth  section  was  intended,  such  conduct 
of  the  seaman  as  should  happen  after  the  commencement  of  the 
voyage.     So  that  proceeding  to  sea,  and  the  commencement  of  the 
voyage,  were  there  held  to  mean  the  same  thing  ;  and  agreeably 
to  this  decision,  the  plaintiff  below  ought  to  have  proceeded  for  the 
penalties  and  forfeitures  imposed  by  the  fifth  section,  and  not  those 
embraced  by  the  second.     If  the  words,  proceed  to  sea,  are  to  re- 
ceive a  strict   construction,  and  do  not   signify,  proceed  towards 
the  sea,  then  the  inquiry  will  be,  where  the  sea  commences.     It  is 
so  difficult  to  fix  the  precise  line,  that  seamen  and  their  sureties 
would  be  much  embarrassed  by  the  inquiry.     It  has  been  held  that 
a  road,  haven,  or  even  river,  not  within  the  body  of  any  county,  is 
high  sea,  in  the  idea  of  civilians.     Montgomery  v.  Henry,  1  Dall.  50. 
In  a  note  to  2  Pet.  Mm.  Dec.  97,  98,  (appendix)  it  is  said,  that  the 
common  law  courts,  have  often  determined,  that  a  vessel  has  not 
proceeded  to  sea,  within  the  meaning  of  the  act  of  congress,  until 
she  has  left  the  Capes  of  the  Delaware.     But  no  authority  is  cited 
for  this  position ;  and  it  certainly  has  never  had  the  sanction  of  this 
court,  if  it  were  even  so  determined  in  the  lower  courts. 

Lowber,  contra.  The  only  question  is,  what  is  the  meaning  of 
the  words  in  the  second  section  of  the  act,  "  so  that  the  vessel  shall 
proceed  to  sea."  They  evidently  contemplate  the  vessel's  having 
arrived  at  the  sea,  being  on  the  sea — and  not  merely  going  towards 


(a)  See  the  section  recited  in  the  opinion  of  the  Chief  Justice. 


Dec.  1822.]  OF  PENNSYLVANIA.  153 

(Behncke  v.  King-.) 

the  sea.  It  is  true,  there  is  some  difficulty  in  determining  exactly 
where  the  sea  commences :  but  it  is  sufficiently  well  understood, 
that  in  common  language,  it  means  when  the  vessel  is  beyond  the 
Capes  of  the  Delaware.  The  second  and  fifth  sections  of  the  act 
of  congress,  are  enacted  with  reference  to  distinct  objects :  the 
second  being  intended  for  desertion  in  a  port  or  river,  where  the 
opportunity  of  escape  is  comparatively  easy,  and  where  the  surety 
may  have  knowledge  of  the  offence,  and  procure  the  seaman's  re- 
turn: whereas,  the  fifth  section  is  enacted  with  a  view  to  desertion 
in  a  foreign  port,  or  place,  out  of  the  view  or  knowledge  of  the 
surety.  In  the  latter  cases,  therefore,  the  master  is  to  stop  the 
wages,  and  hold  the  goods  and  chattels  of  the  mariner.  In  the 
former,  he  may  resort  to  the  surety.  In  Cotel  v.  Hilliard,  all  that 
the  court  decided  w'as,  that  a  seaman  who,  after  having  rendered 
himself  on  board,  deserted  before  the  vessel  left  the  port,  was  not 
within  the  penalties  of  the  fifth  section,  but  was  embraced  by  the 
second  section.  But  they  had  not  before  them  the  case  of  a  sea- 
man who  deserted  after  the  voyage  began,  but  before  the  vessel 
had  got  to  sea :  and  their  language,  in  reference  to  such  a  case, 
must  be  deemed  extra-judicial. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  (after  stating  the  facts.)  The  question  is,  whe- 
ther, on  these  facts,  the  plaintiff  be  entitled  to  recover  of  the  de- 
fendant, a  sum  equal  to  that  which  was  paid  by  advance,  to  the  said 
Knowlton,  at  the  time  of  signing  the  contract,  over  and  besides  the 
sum  so  advanced.  This  depends  on  the  act  of  congress,  "  for  the 
government  and  regulation  of  seamen  in  the  merchants'  service," 
passed  the  20th  July,  1790. 

The  first  section  of  the  act,  directs,  "  that  the  master  shall,  before 
he  proceeds  on  the  voyage,  make  an  agreement  in  writing  or  print, 
with  every  seaman  or  mariner  on  board,  declaring  the  voyage,  and 
the  term  of  time,  for  which  such  mariner  shall  be  shipped."  By 
the  second  section  it  is  enacted,  "  that  at  the  foot  of  every  such 
contract,  there  shall  be  a  memorandum  in  writing,  of  the  day  and 
hour,  on  which  such  seamen  or  mariners  shall  render  themselves 
on  board,  to  begin  the  voyage.  And  if  any  such  seaman,  or  mari- 
ner, shall  neglect  to  render  himself  on  board  the  vessel  for  which 
he  has  shipped,  at  the  time  mentioned  in  such  memorandum,  and 
the  master,  or  other  officer,  shall  on  the  day  on  which  such  neglect 
happened,  make  entry  in  the  log-book,  of  the  name  of  such  seaman, 
or  mariner,  and  shall  in  like  manner  note  the  time  that  he  neglected 
to  render  himself,  (after  the  time  appointed,)  every  such  seaman  or 
mariner  shall  forfeit,  for  every  hour  which  he  shall  so  neglect  to 
render  himself,  one  day's  pay,  according  to  the  rate  of  wages 
agreed  on,  to  be  deducted  out  of  his  wages.  And  if  any  such  sea- 
man or  mariner  shall  wholly  neglect  to  render  himself  on  board 
such  vessel,  or  having  rendered  himself  on  board,  shall  afterwards 

VOL.  ix.  U 


154  SUPREME  COURT  [Philadelphia, 

(Behncke  v.  King .) 

desert" and  escape,  so  that  the  vessel  shall  proceed  to  sea  without  him, 
he  shall  forfeit  and  pay,  to  the  master,  or  owner  of  the  vessel,  a  sum 
equal  to  that  which  shall  have  been  paid  to  him  in  advance,  at  the 
time  of  signing  the  contract,  over  and  besides  the  sum  advanced, 
which  may  be  recovered  against  him  or  his  surety."     This  second 
section   contemplates  two    kinds  of   default,    or    misconduct,  for 
which  different  penalties  are  inflicted.     The  first  is,  where  the  sea- 
man renders  himself  on  board,  but  not  punctually  at  the  time  ap- 
pointed, for  which  he  is  subject  to  the  penalty  of  one  day's  wages 
for  each  hour  of  default.     The  second  is,  where  the  seaman  either 
neglects  wholly,  to  render  himself  on  board,  or  having  rendered 
himself,  afterwards  deserts,  so  that  the  ship  proceeds  to  sea  without 
him,  in  which  case  he  forfeits  double  the  sum  which  has  been  ad- 
vanced to  him.     The  present  case,  is  a  default  of  the  second  de- 
scription.    The  seaman  rendered  himself  on  board,  and  afterwards 
deserted,  and  the  ship  proceeded  to  sea  without  him.     It  is  within 
the  very  words  of  the  act,  unless  it  can  be  made  out,  that  going 
from  Philadelphia  to  Chester  is  a  proceeding  to  sea,  for  then  the 
ship  did  not  proceed  to  sea  without  him.     It  is  certain,  that  when 
the  ship  arrived  at  Chester,  she  was  not  at  sea,  and  therefore,  I  do 
not  comprehend  how  she  had  proceeded  to  sea.     The  defendant's 
counsel  say,  that  a  ship  may  be  said  to  proceed  to  sea,  as  soon  as 
she  begins  to  proceed  towards  the  sea,  in  other  words,  as  soon  as 
she  commences  the  voyage.     This  construction  is  too  refined — 
too  much  at  variance  with  the  meaning  of  the  words  as  gene- 
rally understood.     And  moreover,  it  seems  at  variance  with  the 
understanding  of  the  legislature— for  in  the  first  section,  where  it 
was  intended,  that  certain  things  should  be  done  before  the  com- 
mencement of  the  voyage  it  is  said  so.     The  master  is  directed  to 
make  an  agreement  with  the  seamen,  before  he  proceeds  on  his  voy- 
age, not  before  he  proceeds  to  sea.     So  "in  the  second  section,  there 
is  to  be  a  memorandum  in  writing,  of  the  day  and  hour,  when  the 
seamen  shall  render   themselves  on  board   to  begin  the   voyage. 
Neither  will  the  object  of  the  law  be  attained,  on  the  defendant's 
construction.    The  object  was,  to  deter  the  seamen  from  deserting, 
as  long  as  they  might  be  supposed  to  have  it  in  their  power  to  de- 
sert—that is  to  say,  until  the  ship  got  to  sea.     It  is  quite  as  easy 
to  desert  at  Chester,  as  at  Philadelphia.     But  when  once  at  sea, 
there  is  no  danger  of  desertion.     It  is  objected,  that  there  may  be 
difficulty  in  deciding,  when  a  ship  is  at  sea.     That  may  be  as- 
certained by  the  opinion  of  seamen.     And  supposing  there  be  a 
little  difficulty,  it  is  no  reason  for  resorting  to  a  construction,  which 
would  deprive  the  law  of  its  effect,  in  a  very  material  part.     But 
the  defendant's  counsel  place  great  reliance  on  the  fifth  section, 
which  they  say,  inflicts  a  penalty  for  desertion  after  the  commence- 
ment of  the  voyage,  and  therefore,  it  is  to  be  intended,  that  the 
second  section,  extends  only  to  desertion,  before  its  commence- 
ment.   The  fifth  section  is  as  follows :  "  If  any  seaman  who  shall 


Dec.  1822.]  OF  PENNSYLVANIA.  155 

(Behncke  v.  King.) 

have  subscribed  such  contract,  shall  absent  himself  from  on  board 
the  vessel  in  which  he  shall  have  so  shipped,  without  leave  of  the 
master  or  officer  commanding  on  board,  and  the  mate  or  other  of- 
ficer having  charge  of  the  log-book,  shall  make  an  entry  therein, 
of  the  name  of  such  seaman,  on  the  day  on  which  he  shall  absent 
himself,  and  if  such  seaman  shall  return  to  his  duty  within  48  hours, 
he  shall  forfeit  three  days'  pay,  for  every  day  which  he  shall  so  ab- 
sent himself,  to  be  deducted  out  of  his  wages  ;  but  if  he  shall  absent 
himself  for  more  than  48  hours  at  one  time,  he  shall  forfeit  all  the 
wages  due  to  him,  and  all  his  goods  and  chattels  which  were  on 
board  the  said  vessel,  or  in  any  store  where  they  may  have  been 
lodged  at  the  time  of  his  desertion,  to  the  use  of  the  owners  of  the 
vessel,  and  moreover,  shall  be  liable  to  pay  to  him  or  them,  all 
damage  which  he  or  they  may  sustain,  by  being  obliged  to  have 
another  seaman  in  his  place.  On  this  section  it  is  to  be  observed, 
that  it  certainly  comprehends  some  cases,  not  included  in  the  second 
section.  It  comprehends  cases  of  desertion,  after  the  ship  has  pro- 
ceeded to  sea,  viz.  in  foreign  ports,  and  perhaps  that  was  its  princi- 
pal object,  and  I  incline  to  the  opinion,  that  it  does  not  comprehend 
all  the  cases  included  in  the  second  section — for  instance  the  case 
of  a  seaman  who  never  rendered  himself  on  board  the  ship,  or  of  one, 
who  having  rendered  himself,  deserted  before  the  ship  sailed  on  Iter 
voyage.  Such  was  the  case  of  Cotel  v.  Hilliard,  decided  by  the 
Supreme  Court  of  Massachusetts,  (4  Mass.  Rep.  664.)  I  agree  with 
that  decision,  though  I  do  not  wholly  agree  with  the  argument  of 
the  learned  Judge,  who  delivered  the  court's  opinion.  He  seemed 
to  think,  that  the  second  section  was  confined  to  desertion  before  the 
commencement  of  the  voyage.  I  think  it  extends  to  desertion  before 
the  ship  has  got  to  sea.  There  is  no  inconsistency  between  the  se- 
cond and  fifth  sections.  Even  if  the  fifth  section  should  be  so  con- 
strued as  to  include  cases  within  the  provision  of  the  second,  so  as 
to  inflict  a  cumulative  penalty,  according  to  the  argument  of  the 
present  Judge  Story,  who  was  of  counsel  with  the  plaintiff  in  the 
case  of  Cotel  v.  Hilliard,  there  would  be  no  inconsistency.  Inas- 
much then,  as  this  case  falls  directly  within  the  words  of  the  second 
section,  as  well  as  its  spirit,  it  appears  to  me  that  the  law  is  with  the 
plaintiff.  In  2  Peters's  Reports,  97,  98,  (appendix,)  it  is  said,  in  a 
note,  to  have  been  frequently  decided  in  the  courts  of  common  law, 
that  a  vessel  has  not  proceeded  to  sea,  within  the  meaning  of  the  act 
of  congress,  until  she  has  left  the  capes  of  the  Delaware.*  No  case 
is  cited,  but  I  presume  the  author  would  not  have  made  the  assertion 
without  some  authority.  Be  that  as  it  may,  as  it  is  quite  certain, 
that  the  ship  had  not  proceeded  to  sea,  when  she  had  gone  no  fur- 
ther than  Chester.  I  am  of  opinion  that  the  judgment  of  the  Court 
of  Common  Pleas  should  be  affirmed. 

Judgment  affirmed. 


156  SUPREME  COURT  [Philadelphia, 

[Philadelphia,  jan.  6th,  1823.] 

FRIEDLY  against  SCHEETZ. 

IN  ERROR. 

A  sheriff's  sale  cannot  be  objected  to  by  the  purchaser  merely  on  the  ground  of  de- 
fect of  title;  it  is  binding  in  all  cases,  except  where  there  is  fraud  or  a  misde- 
scription of  the  property  in  some  material  respect. 

A  purchaser  cannot  object  to  a  sheriff's  sale  a  defect  of  title  of  which  he  had  notice  : 
and  therefore  when  he  has  bought  after  notifying  publicly  at  the  sale  such  defect, 
he  cannot  give  evidence  thereof  in  a  suit  against  him  for  the  purchase  money. 

If  the  conditions  of  sale  are  that  the  purchaser  shall  pay  in  ten  days,  and  the  sheriff  'a 
deed  shall  be  delivered  at  a  subsequent  day,  and  if  the  purchaser  refuses  to  comply, 
the  property  will  be  sold  at  his  risk,  and  the  purchaser  gives  bond  to  comply 
with  the  conditions  of  sale,  he  is  liable   on  the  bond  without  a  re-sale. 

If  a  declaration  on  a  bond  for  the  purchase  money  at  sheriff's  sale  omit  to  state  a 
sale  it  would  be  bad  on  demurrer:  but  if  the  defendant  go  to  trial  after  pleading 
payment  and  giving  notice  of  special  matter  which  sets  forth  the  sale,  the  defect  is 
cured  by  the  notice. 

A  verdict  for  the  plaintiff  in  debt  finding  more  than  the  sum  demanded  as  debt, 
appearing  by  calculation  to  be  for  the  debt  and  interest,  is  informal,  but  may  be 
moulded  into  form  by  considering  the  surplus  as  damages,  and  is  not  error. 

Error  to  the  Court  of  Common  Pleas  of  Montgomery  county, 
in  an  action  of  debt,  brought  by  Justice  Scheetz,  the  defendant  in 
error,  against  John  Friedly,  the  plaintiff  in  error,  in  which  there 
was  a  verdict  and  judgment  for  the  plaintiff  below,  and  bills  of  ex- 
ceptions were  returned  with  the  record. 

The  declaration  stated,  that  John  Friedly  on  the  20th  December, 
1817,  by  his  certain  bill  obligatory,  with  his  seal  sealed,  &c.  had 
acknowledged  himself  to  be  indebted  to  the  said  J.  Scheetz,  in  the 
sum  of  2310  dollars,  to  he  paid  to  the  said  J.  Scheetz,  agreeably  to 
the  conditions :  which  said  conditions  were  as  follows,  to  wit, 
"  The  conditions  of  this  present  vendue,  held  this  20th  December, 
A.  D.  1817,  for  the  sale  of  three  different  lots  of  land  with  the 
appurtenances  thereon  :  1st.  A  lot  of  ground  65  feet  front,  by 
300  deep,  with  a  frame  messuage  thereon ;  lot  No.  2.  A  stone  mes- 
suage, and  two  lots  of  ground,  each  containing  60  feet  front,  by 
300  feet  deep,  adjoining  lands  of  Michael  Ludiuig ;  lot  No.  3.  A 
lot  of  land  containing  two  acres,  in  the  township  of  Potts-grove, 
whereon  is  erected  a  brickyard,  adjoining  lands  of  Henry  Varley 
and  John  Boyer,  in  the  borough  of  Pottstown ;  siezed  and  taken  in 
execution  as  the  property  of  Henry  Friedly,  junior,  are  as  follows, 
to  wit :  highest  bidder  to  be  the  purchaser :  the  purchaser  to  pay 
50  dollars  cash,  at  the  striking  off  of  the  property,  and  the  remain- 
der in  ten  days  after :  for  which  a  sheriff's  deed  will  be  delivered, 
regularly  executed  on  the  16th  February  next.  If  the  purchaser 
refuses  to  comply  with  the  aforesaid  conditions,  the  property  will 
be  sold  at  his  risk.  Justice  Scheetz,  sheriff:"  to  which  payment 
well  and  truly  to  be  made  the  aforesaid  John  Friedly  bound  him- 
self firmly  by  the  same  bill.     Yet,  &c,   (laying  a  breach  in  non- 


Dec.  1822.]  OF  PENNSYLVANIA.  157 

(Friedly  v.  Scheetz.) 

payment  of  the  2310  dollars,  and  damages  at  3000  dollars.)  The 
defendant  pleaded  payment,  with  leave  to  give  the  special  matters 
in  evidence.     Replication  non  solvit,  and  issue. 

The  defendant  under  this  plea  gave  notice  to  the  plaintiff,  that, 
on  the  trial,  he  would  give  in  evidence,  that  the  obligation  on  which 
the  suit  was  brought,  was  for  and  on  the  purchase  of  a  stone  mes- 
suage and  two  lots  of  land,  each  containing  60  feet  front  and  300 
feet  deep,  adjoining  lands  in  the  borough  of  Pollstoivn,  in  the 
county  of  Montgomery,  sold  to  the  defendant,  by  the  plaintiff  as 
sheriff  of  said  county,  and  as  the  property  of  Henry  Friedly,  junior, 
and  that  he  (the  said  Henry  Friedly,  junior,)  at  the  time  of  the 
sale,  nor  at  any  time  from  and  after  the  24th  May,  1817,  had  no 
estate,  right,  title  or  interest  in  or  to  the  said  lots  of  land  :  he  and  So- 
phia his  wife  having,  by  deed  of  the  date  last  mentioned,  bona  fide, 
and  for  a  valuable  consideration,  sold  and  conveyed  the  said  mes- 
suage and  lots  of  land,  unto  Henry  Friedly,  the  elder,  in  fee  ;  so 
that  the  consideration  of  the  obligation  on  which  the  suit  was  brought 
had  totally  failed. 

On  the  trial,  the  plaintiff  proved  the  obligation,  the  advertisement 
of  sale  and  the  conditions  of  sale  stated  in  the  declaration,  and  the 
defendant's  acknowledgment  in  writing  under  hand  and  seal,  dated 
the  20th  December,  1817,  that  the  two  lots  of  ground  each  contain- 
ing 60  feet  front  by  300  deep,  with  a  stone  messuage  thereon,  in 
the  borough  of  Pottslown,  were  struck  off  to  him  at  his  bid,  for  the 
the  sum  of  2310  dollars,  which  he  promised  to  pay  to  J.  Scheetz, 
agreeably  to  the  conditions.  He  then  gave  in  evidence,  that  this 
property  was  struck  off  to  the  defendant  at  the  sale,  as  the  highest 
bidder,  and  that  on  the  14th  Septetnber,  1818,  the  sheriff's  deed 
was  tendered  to  the  defendant,  to  which  he  replied,  that  whenever  the 
sheriff  made  him  a  clear  title,  he  would  pay  him  the  money,  but  that 
he  was  not  ready  to  pay  it  at  that  time  ;  after  which  the  suit  was  com- 
menced :  that  at  the  time  of  the  sale,  the  defendaut  read  the  follow- 
ing paper,  there  being  then  many  good  bidders  at  the  sale.  "  No- 
tice is  hereby  given  by  the  subscriber,  that  the  property  above  men- 
tioned, and  to  be  sold  by  the  sheriff,  Justice  Scheetz,  as  the  property 
of  Henry  Friedly,  junior,  was  not  his,  nor  has  he  any  right,  or  title 
to  the  same  or  any  part  thereof.  The  title  to  the  lots  of  land,  and 
premises  advertised  as  aforesaid,  is  in  the  subscriber,  for  a  full  con- 
sideration paid  on  a  bona  fide  purchase,  and  has  been  so  from  be- 
fore the  25th  May,  1817.     Henry  Friedly." 

The  defendant  then  offered  in  evidence  a  deed,  dated  24th  May, 
1817,  from  Henry  Friedly,  junior,  to  Henry  Friedly,  senior,  to 
show  that  the  title  was  not  in  the  defendant  in  the  execution, 
Henry  Friedly,  junior,  as  whose  property  the  messuage  and  lots 
were  sold.     This   evidence  was  objected    to  by  the  plaintiff,  and 


158  SUPREME  COURT  [Philadelphia, 

(Fricdly  v.  Scheetz.) 

overruled  by  the  court,  and  the  defendant  tendered  a  bill  of  ex- 
ceptions. 

The  verdict  was  for  the  plaintiff. 

Kittera,  for  the  plaintiff  in  error,  assigned  several  errors. 

1.  The  court  erred  in  rejecting*  the  deed  from  H.  Fried  ly,  junior, 
to  his  father.  Their  decision  cannot  be  supported,  unless  it  be  main- 
tained that  the  purchaser  at  sheriff's  sale  is,  in  all  cases,  bound  by 
his  bid,  whereas  there  may  have  been  fraud  which  would  destroy  the 
validity  of  the  sale,  and  which  perhaps  could  not  be  inquired  into 
without  this  deed.  But  as  a  general  principle,  the  purchaser  at 
sheriff's  sale  may,  at  any  time  before  money  paid,  show  defect  of 
title,  and,  on  that  ground,  rescind  the  contract.  The  rule  is  well 
established  as  to  ordinary  sales  of  land,  Stcinhauer  v.  Witman, 
1  Serg.  §•  Rawle,  438,  and  there  is  no  reason  why  a  sheriff's  sale 
should  be  excepted.  It  can  never  be  supposed  that  it  was  the  mean- 
ing of  the  parties,  that  a  valuable  consideration  should  be  paid  for  a 
defective  title.  "The  obvious  and  plain  rule,"  says  Yeates,  J.  in 
Steinhaaer  v.  Witman,  1  Serg.  §  Rawle,  446,  "is,  what  was 
the  true  meaning  of  the  contracting  parties  ?  Was  it  contemplated, 
mutually,  that  the  purchaser  should  hold  the  land  under  a  good 
right,  or  that  he  should  run  his  chance  of  getting  a  title,  and  be  ex- 
posed to  all  hazards."  The  sheriff's  writ  commands  him  to  levy 
on  the  property  of  the  defendant,  and  he  has  no  right  to  put  up  to 
sale  or  dispose  of,  a  mere  pretence  or  shadow  of  title.  It  would  be 
a  dangerous  doctrine  to  say,  that  every  purchaser  is  bound  by  his 
bid,  though  it  turns  out  immediately  after,  that  nothing  can  be  con- 
veyed by  the  sheriff.  No  person  would  bid  at  sheriff's  sales  on 
such  terms. 

2.  There  is  no  cause  of  action  set  forth  in  the  declaration.  The 
defendant  bought  according  to  the  conditions  of  sale:  and  one  of 
these  conditions  was,  that  if  the  money  were  not  paid  in  ten  days,  the 
property  should  be  resold,  and  the  defendant  charged  with  the  dif- 
ference. Instead  of  which,  the  property  was  never  resold,  but  an 
attempt  is  made  to  deprive  the  defendant  of  the  right  to  a  resale, 
and  to  charge  him  with  the  purchase  money.  It  was  in  the  defen- 
dant's election  to  pay,  or  have  the  property  resold  :  and  as  pay- 
ment was  refused  the  duty  of  the  sheriff  was  to  put  up  the  property 
again,  and  sue  for  the  difference,  if  any.  It  does  not  appear,  but 
that  the  property  would  have  sold  for  the  same,  or  a  greater  price  : 
and  thus  no  damage  would  have  been  sustained.  The  case  of  Web- 
ster v.  Hoban,  1  Crunch.  399,  is  in  point.  It  was  there  held, 
that  on  a  sale  of  land  at  auction,  if  the  terms  be  that  the  purchaser 
shall,  within  thirty  days,  give  his  notes  with  two  good  indorsers, 
and  if  he  shall  fail  to  comply  within  the  thirty  days,  then  the 
land  to  be  resold  on  account  of  the  first  purchaser,  the  vendor 
cannot  maintain  an  action  against  the  vendee  for  a  breach  of  the 
contract  until  a  resale  shall  have  ascertained  the  deficit.     The  de- 


Dec.  1822.]  OF  PENNSYLVANIA.  159 

(Friedly  v.  Scheetz.) 

claration  is  also  defective,  inasmuch  as  it  omits  to  state  that  any 
sale  was  made. 

3.  The  verdict  and  judgment  are  erroneous.  They  are  for  more 
than  the  debt  demanded.  The  amount  beyond  the  demand  is  not 
found  by  way  of  damages,  as  it  might  have  been,  but  the  whole  is 
found  as  debt.  The  plaintiff  may  recover  less  than  the  debt  demand- 
ed, 1  Esp.  N.  P.  262,  4  Yeates,  283,  but  cannot  recover  more. 

1.  Sergeant,  contra. 

1.  It  is  to  be  observed  that  the  defendant  is  not  only  a  pur- 
chaser with  notice,  but  he  himself  was  the  very  man  who  published 
the  notice  of  defective  title  just  before  he  made  the  purchase  :  and 
there  were  other  good  bidders  at  the  sale.  This  introduces  into 
the  case  not  only  the  question,  whether  the  purchaser  can  show 
defect  of  title,  but  whether  he  can  be  allowed  to  show  it,  when  he 
knew  of  the  defect  at  the  time  of  the  purchase.  In  Hart  v.  Por- 
ter's Executors,  5  Serg.  §'  Rawle,  204,  5,  the  principle  on  which 
Steinhauer  v.  Witman,  was  decided,  is  stated  by  the  Chief  Jus- 
tice to  have  been,  that  "  where  one  party  intended  to  convey,  and 
the  other  expected  to  receive  a  good  title,  it  is  but  equity,  that  the 
purchaser  should  have  relief  in  case  of  any  defect  of  title,  although 
there  was  no  express  agreement  to  that  effect.  Where  the  intent 
was,  that  the  purchaser  should  run  the  risk  of  title,  there  is  not 
a  word  to  be  said  for  him  :  and  such  intention  may  be  fairly  in- 
ferred when  he  knew  of  the  defect  at  the  time  of  the  purchase  ; 
and  made  no  provision  against  it  by  his  agreement."  What  then 
can  be  said  for  the  defendant  when  he  knew,  and  undertook  to  in- 
form others  of  the  defect,  and  yet  went  to  bid  for  the  property  ?  He 
surely  has  not  a  scintilla  of  equity.  But  it  was  not,  and  usually  it 
is  not,  the  intent  of  the  sheriff,  or  the  understanding  of  these  sales, 
that  the  sheriff  sells  any  thing  more  than  the  right  of  the  debtor, 
good  or  bad.  He  has  no  better  means  of  knowing  the  title  than 
the  purchaser.  The  purchaser  at  sheriff's  sale  has  always  the  ad- 
vantage of  buying  at  a  reduced  price,  and  it  is  a  very  great  ad- 
vantage, when  there  is  notice  of  a  disputed  title.  What  is 
said  by  Duncan,  J.  in  Smith  v.  Painter,  5  Serg.  $•  Rawle,  225, 
is  in  point,  namely,  that  the  purchaser  at  sheriff's  sale  takes  all 
risk:  he  buys  on  his  own  knowledge:  and  caveat  emptor  applies 
in  all  its  force  to  him.  It  is  said,  that  the  deed  might  have  shown 
fraud  :  but  it  was  offered  as  appears  by  the  notice  of  special  matter 
not  to  show  fraud  or  mistake,  but  only  defect  of  title,  and  conse- 
quently that  there  was  no  consideration. 

2d.  The  declaration  taken  altogether,  contains  a  good  cause  of 
action.  By  the  terms  of  sale,  there  were  no  conditions  on  the 
part  of  the  plaintiff  to  be  performed:  that  is,  no  conditions  prece- 
dent. The  defendant  was  to  pay  in  ten  days,  which  would  be  the 
30th  December,  1S17 :  the  deed  was  not  to  be  delivered  till  the  16th 
February,  1818.  The  purchase  money  was  to  be  paid  before  the 
Ved  was  made.     The  defendant  relies  on  that  part  of  the  conditions 


160  SUPREME  COURT  [Philadelphia, 

(Friedly  v.  Scheetz.) 

relative  to  a  resale.  That  was  merely  a  condition  introduced  for 
the  benefit  of  the  plaintiff,  as  a  penalty  for  the  defendant's  non- 
performance of  the  contract  of  purchase,  and  the  plaintiff  may 
waive  it,  and  recur  to  the  purchase  itself.  In  the  President,  6fC. 
of  the  Delaware  and  Schuylkill  Canal  Navigation  v.  Sansom,  1  Binn. 
70,  it  was  determined  that  the  Company  might  waive  a  forfeiture 
given  by  the  act  of  assembly,  and  proceed  upon  the  agreement  by 
action. 

The  case  of  Webster  v.  Hoban,  differed  from  the  present  case. 
That  was  an  action  for  damages  for  non-performance  of  an  agree- 
ment :  and,  in  such  case,  a  resale  might  be  necessary,  in  order  to 
ascertain  the  damages.  But  here  the  action  is  not  for  damages, 
but  for  money  agreed  to  be  paid.  The  defendant  by  giving  his 
obligation,  has  waived  the  election  which  he  claims,  even  if  he  pos- 
sessed it,  and  by  a  new  contract,  agreed  to  pay  the  purchase  money. 
The  defence  also,  is  a  legal  one,  namely,  that  the  conditions  have 
not  been  complied  with.  The  plea  of  payment,  with  leave,  lets  in 
equitable  defences,  but  not  a  legal  one,  which  might  have  been 
pleaded.  As  to  the  omission  to  state  a  sale  in  the  declaration, 
though  that  might  have  been  taken  advantage  of  on  demurrer,  it  is 
now  too  late  to  object.  The  whole  pleadings  and  notice,  sufficiently 
show,  that  a  sale  was  made  to  the  defendant. 

3d.  The  error  suggested  on  this  head,  might  have  been  amend- 
ed in  the  court  below.  It  appears  by  calculation,  that  the  verdict 
was  for  debt  and  interest.  So  that  it  is  merely  an  informal  verdict, 
which  the  court  may  mould  into  form.  Ker  v.  Hawthorn,  4  Yeates, 
292,  3.  This  court,  on  error  brought,  may  make  the  amendment 
which  the  court  below  ought  to  have  made. 

The  opinion  of  the  court  was  delivered  by 

Du\can,  J.  This  was  an  action  of  debt  on  a  single  bill, 
given  by  plaintiff  in  error,  defendant  below,  to  defendant  in  er- 
ror for  2,310  dollars,  on  what  the  parties  went  to  trial,  on  the  plea 
of  payment,  with  leave  to  give  the,  special  matter  in  evidence. 
Under  this  plea,  the  defendant  gave  notice  of  special  matter, 
which  set  out  the  defence,  the  consideration  for  which  the  bill 
was  given,  and  the  failure  of  that  consideration.  The  notice  was 
as  fol^pws,  (here  his  Honour  read  the  defendant's  notice  of  special 
matter.)  On  the  trial,  the  plaintiff  gave  in  evidence,  the  bill,  and 
conditions  of  sale,  referred  to  in  the  bill,  and  proved  a  tender  of  con- 
veyance, duly  acknowledged,  and  a  demand  of  the  purchase  money. 
The  defendant  declined  receiving  it,  saying,  "  when  the  Sheriff 
made  him  a  clear  title,  he  would  pay  the  money  ;  but  that  he  was 
not  ready  at  that  time ;"  and  further  proved,  that  at  the  time  of  the 
sale,  the  defendant  read  a  paper,  signed  by  Henry  Friedly,  Senr. 
cautioning  the  bidders  not  to  bid  for  the  property,  as  the  title  was 
not  in  Henry  Friedly,  Jun.,  but  in  Henry  Friedly,  Senr.,  and  that 
there  were  many  good  bidders  at  the  sale. 

The  defendant  then  offered  in  evidence,  pursuant  to  his  notice, 


Dec.  1822.]  OF  PENNSYLVANIA.  16i 

(Friedly  v.  Scheetz.] 

"  a  deed,  dated  May  24th,  1817,  from  Henry,  Friedly  Jr.  to  Henry 
Friedly,  Senr.,  to  show  the  title  was  not  in  the  defendant  in  the  ex- 
ecution, as  whose  property  it  was  sold."  This  evidence  was  ob- 
jected to,  and  was  not  received,  and  exception  taken.  The  jury 
gave  a  verdict  in  debt  for  a  numerical  sum,  beyond  the  sum  de- 
manded by  the  writ  or  declaration.  The  extra  sum,  by  calculation, 
appears  to  be  the  interest  due  on  the  bill,  and  in  strictness  ought  to 
have  been  given  by  the  name  of  damages. 

On  the  merits,  besides  the  rejection  of  the  evidence,  the  defend- 
ant below,  plaintiff  in  error,  contends,  though  the  objection  does 
not  appear  to  have  been  made  in  the  Court  of  Common  Pleas,  that 
no  action  could  be  supported,  until  there  had  been  a  resale,  and 
that  only  for  the  difference,  if  the  second  sale  was  for  a  less  sum. 

He  makes  objections  to  the  form  of  the  proceedings  ;  to  the  de- 
claration, because  it  sets  out  no  breach  of  the  conditions  of  sale,  or 
that  there  was  a  sale  ;  shows  no  cause  of  action,  or  title  to  the  mo- 
ney demanded  ;  to  the  verdict,  because  the  verdict  and  judgment 
are  for  a  debt  greater  than  plaintiff  demands.     The  notice  of  the 
special  matter  is  to  be  considered  in  the  light  of  a  bill  in  equity,  to 
be  relieved  from  a  legal  obligation,  which,  in  conscience,  ought  not 
to  bind  him.     It  states  no  fraud  committed  on  the  vendor  by  the 
vendee  ;  no  misrepresentation ;  no  concealment ;  no  ignorance  of 
facts  ;  but  seeks  protection  and  absolution  from  his  obligation,  by 
reason  of  a  fact  not  only  known  to  him,  but  which  he,  as  agent  of 
Henry  Friedly,  Jr.,  in  order  that  there  might  be  no  pretence  of  a 
purchase  without  notice,  publishes  at  the  time  of  sale.     For  if  he 
did  not  act  as  the  agent  of  Henry  Friedly,  Senr.,  he  would  be  com- 
mitting a  palpable  fraud,  in   exciting  apprehensions  as  to  the  title 
in  the  minds  of  the  other  bidders,  and  thus  obtaining  property  at  an 
undervalue,  and  if  he  did,  and  afterwards  bought,  he  would  be  pre- 
sumed to  have  knowledge  of  the  title,  and  to  have  bought  confident 
in  his  own  knowledge  of  the  law.     Now  in  such  a  case  as  this,  if  a 
man  has  knowledge  of  the   fact,  and  acts  presumptuously  on  his 
own  opinion   of  the   law,  though  mistakenly,  if  not  fraudulently, 
drawn  into  the  mistake,  that  is  no  ground  for  relief  in  equity.     I 
speak  of  sales  by  judicial  process,  and  contracts  between  man  and 
man,  which  was  the  case  of  Steinhauer  v.  Witman,  1  Sergt.  8f  Rkwle, 
438.     That  case  is  not  well  understood.     It  does  not  go  to  the  wild 
length,  as  some  have  supposed,  that  a  man  who  purchases  a  title, 
with  all  its  defects  and  imperfections,  and  whose  conveyance  con- 
tains no  covenant  of  warranty,  is  not  bound  to  pay  the  bonds  he 
has  given  for  it.     For  Mr.  Justice  Yeates,  the  great  advocate  for 
the  departure  from  the  general  rule  both  of  law  and  equity,  of  ca- 
veat emptor,  in  the  sale  of  lands,  yet  restrains  its  operation;  for  he 
puts  it  on  a  very  rational  principle.     The  obvious  and  plain  rule,  he 
says,  is,  "  what  was  the  true  meaning  of  the  contracting  parties ; 
was  it  contemplated  mutually,  that  the  purchaser  should  hold  the 
land  under  a  good  title,  or  that  he  should  run  his  chance  of  getting 
vol.  ix.  X 


162  SUPREME  COURT  [Philadelphia, 

(Friedly  v.  Scheetz.) 

a  title  and  be  exposed  to  all  hazards,"  page  446.  And  in  447, 
resting  it  solely  on  the  foundation  of  usage,  he  observes,  "  I  have 
asserted  the  general  understanding  to  have  been  that  in  all  cases, 
unless  where  it  plainly  appeared  that  the  purchaser  agreed  to  run 
the  risk  of  the  title,  either  by  special  contract,  or  where  it  might  be 
fairly  inferred  from  the  consideration  money,  being  highly  inade- 
quate to  the  value  of  the  premises,  at  the  time  of  the  contract,  he 
might  defend  himself  in  a  suit  for  the  consideration  money,  by  show- 
ing that  the  title  was  defective,  either  in  whole  or  in  part,  whether 
there  was  a  covenant  of  general  warranty,  or  other  engagement,  on 
the  part  of  the  vendor,  that  he  had  a  good  right  to  convey,  or  of 
quiet  enjoyment,  or  the  like  covenants,  or  not."  The  nature  of  a 
Sheriff's  sale,  it  is  well  known,  is  a  sale  of  the  defendant's  title. 
He  conveys  to  the  purchaser  a  free  and  clear  estate,  as  fully  and 
amply,  as  they  were  in  the  debtor.  The  Sheriff  enters  into  no 
covenant.  Inadequacy  of  price  alone  is  no  objection  to  a  sale  un- 
der process  of  law.  11  Johns.  555.  The  doctrine  in  Steinhauer  v. 
Whitman,  has  no  relation  to  sales  by  a  Sheriff  on  executions.  It  is 
not  pretended  by  any  one,  that  the  usage  asserted  and  maintained 
by  Judge  Yeates  extended  to  them.  If  any  fraud  was  practised  on 
the  purchaser,  or  any  mistake  in  the  description,  application  should 
be  made  to  the  court  at  the  term  at  which  the  writ  is  returnable  to 
set  aside  the  sale.  I  do  not  say,  that  the  neglect  of  this  would  pre- 
vent a  purchaser  from  setting  up  this  defence  to  an  action  by  the 
plaintiff.  But  the  acquiescence  would  diminish  the  force  of  the 
objection,  though  if  the  court  refused  to  set  aside  the  sale,  it  might 
not  be  conclusive.  But  this  is  not  a  case  of  fraud,  either  alleged 
in  the  notice,  or  offered  to  be  proved  at  the  trial.  The  deed  from 
Henri/  Friedly  the  younger  to  Henry  Friedly  the  eldev,  was  offered, 
to  show,  that  the  title  was  not  in  the  younger  Friedly.  The  ques- 
tion is  then  reduced  to  this  single  point,  can  a  purchases,  having 
direct  notice  at  the  time  of  sale,  that  the  defendant  in  the  exe- 
cution, has  sold  and  conveyed  the  estate  before  the  judgment,  set 
up  that  conveyance  as  a  defence  in  a  suit  for  the  purchase  money 
by  the  Sheriff.  It  is  conceived,  but  one  answer  can  be  given 
to  this  question,  that  he  cannot.  It  would  obstruct  the  recovery 
of  all  debts,  if  this  could  be  done  :  for,  by  a  family  arrangement, 
friends  might  again  and  again  bid  in  the  property,  and  then  de- 
fend themselves  from  payment,  on  the  want  of  title.  It  is  a  misr 
take  when  it  is  supposed,  that  the  Sheriff  sells  a  sound  title. 
He  sells  the  claim  of  the  defendant  in  the  execution,  and  no  more, 
as  free  and  clear  an  estate  as  the  debtor  held  ;  and  the  rule  of 
caveat  emptor,  is  binding  on  every  purchaser  at  Sheriff's  sale. 
Fraud,  a  clear  mistake  in  the  description  of  the  property  by  the  She- 
riff, its  situation,  its  dimensions ;  would  raise  a  different  question : 
but  even  in  these  cases,  the  purchaser  ought  not  to  lie  by,  when  he 
has  obtained  the  knowledge,  but  should  move  the  court  to  set  aside 
Jhe   sale,  and  under  some  circumstances,  long  delay  after  disco- 


s 


Dec.  1822.]  OF  PENNSYLVANIA.  163 

(Friedly  v.  Scheetz.) 

very,  would  amount  to  an  abandonment  of  the  objection.  One  can 
however  lay  down  no  rule  as  to  this.  Every  case  depends  on  its  own 
circumstances.  If  the  defendant  in  the  execution  or  judgment  credi- 
tors, had  been  dissatisfied  with  this  sale,  on  the  ground  that  the  pro- 
perty sold  at  a  great  undervalue,  on  account  of  the  notice,  a  court  of 
Justice  would  readily  sustain  the  objection:  for  it  is  a  most  suspicious 
circumstance,  where  the  purchaser  either  acting  for  himself,  or 
as  agent  for  another,  publishes  the  notice  of  adverse  title,  keeps 
off  other  bidders,  and  then  buys  himself;  but  it  is  a  defence  against 
payment  of  the  purchase  money,  by  such  bidder,  that  would  not  be 
countenanced  in  a  court  of  equity,  because,  without  giving  any  opi- 
nion on  the  purity  of  this  particular  transaction,  it  would  open  wide 
the  door  to  frauds  in  conducting  Sheriffs  sales.  It  is  better  for  the  suit- 
or and  for  the  purchaser,  that  it  should  be  distinctly  understood,  that 
a  sale  cannot  be  shaken,  except  in  cases  of  fraud,  or  misdescription 
of  the  property  in  some  material  respect.  It  is  not  a  just  rule,  that 
will  not  work  on  both  sides.  Now  it  would  work  most  unequally, 
that  a  purchaser  should  bid  in  an  estate  at  undervalue,  on  account  of 
some  supposed  defect  of  title,  and  that  he  should  not  be  bound  to 
pay,  unless  the  title  proved  good,  on  a  trial  for  the  purchase  money; 
that  though  he  bought  only  the  title  of  defendant,  whatever  it  was, 
still  that  he  was  not  bound  to  pay,  unless  it  was  a  clear  one.  There 
could  be  nothing  more  mischievous*  than  relaxing  the  binding  na- 
ture of  these  sales  where  they  are  fair.  If  the  general  rule  presses 
hard  in  a  particular  instance,  it  compensates  for  the  hardship  of  the 
particular  case  by  its  general  benefit,  security  and  certainty.  It 
would  be  manifestly  unequal  and  unjust,  to  release  the  purchaser 
from  his  bid,  on  account  of  defective  title,  the  very  cloud  which 
diminished  its  value,  and  not  to  relieve  the  defendant  in  the  execu- 
tion, when  he  was  able  to  dissipate  that  cloud  which  sacrificed  his 
property.  But  the  duties  of  both  are  plain :  the  purchaser  to  exa- 
mine the  title  before  he  buys  ;  the  defendant  at  the  time  of  sale,  to 
show  its  validity,  to  clear  up  as  far  as  he  can,  any  objections  to  it. 
But  if  the  purchaser  will  not  inquire,  he  should  suffer  for  his  con- 
fidence :  and  if  the  defendant  in  the  execution,  will  be  silent  and  not 
show  his  title,  lie  should  suffer  for  his  obstinacy.  If  the  sale  is  a 
fair  one,  it  binds  both,  if  tainted  with  fraud,  it  binds  neither,  un- 
less he  is  a  party  to  the  fraud.  The  conveyance  was,  therefore,  pro- 
perly rejected.  It  was  irrelevant  to  the  issue.  It  ought  not  to  pro- 
fit the  defendant,  nor  injure  the  plaintiff. 

It  is  very  questionable,  indeed  my  own  impression,  and  here  I 
only  state  my  own  impression,  is,  that  the  objection  as  to  the  resale, 
is  not  raised  on  the  record.  The  court  was  not  called  to  give  any 
opinion,  nor  is  there  any  evidence  stated.  There  might  or  there 
might  not  be  a  resale ;  the  point  was  not  made  ;  the  bill  of  excep- 
tions only  brings  the  question  of  evidence  as  to  the  conveyance, 
and  that  alone  before  the  court.  But  if  it  were  before  the  court, 
we  are  all  of  opinion  that  the  sheriff  could  support  an  action  on 
this  obligation  without  a  resale.     The  case  of  Webster  and  Ford  v. 


164  SUPREME  COURT  [Philadelphia, 

(Friedly  v-  Schcetz.) 

Hoban,  7  Cranch.  399,  differs  in  many  material  respects.  There 
it  was  an  action  on  the  sale  itself,  here  it  is  on  an  obligation  given 
for  the  purchase  money.  There  the  material  condition  was,  that 
the  purchaser  should  secure  the  'purchase  money,  payable  in  6 
and  12  months,  and  should  have  30  days  to  comply  with  the  article, 
at  which  time,  in  case  of  compliance,  he  was  to  receive  a  good  and 
complete  title  to  the  property,  or  failing  to  comply  within  30  days, 
the  property  then  to  be  sold  on  account  of  the  first  purchaser :  here 
the  whole  purchase  money  was  to  be  paid  in  10  days,  but  the 
sheriff's  deed  was  not  to  be  delivered  for  more  than  one  month 
afterwards,  and  then  to  be  only  a  conveyance  of  the  title  of  the  de- 
fendant in  execution.  There  the  court  held  the  resale  on  account 
of  the  purchaser  would  entitle  him  to  any  surplus :  but  here  the 
resale  was  at  the  risk  of  the  purchaser,  and  on  a  resale  made  by  a 
sheriff  for  the  purchaser's  non-compliance,  the  purchaser  would  not 
be  entitled  to  any  surplus,  though  he  would  be  accountable  for  any 
deficiency. 

But  the  ground  of  that  decision  was,  that  the  action  would  ex- 
pose the  defendant  to  have  damages  assessed  against  him  by  some 
uncertain,  arbitrary,  and  unsatisfactory  rule,  which  might  be  adopt- 
ed by  a  jury,  and  of  the  advantages  which  were  reserved  to  him 
by  the  terms  of  the  auction,  the  plaintiff  could  not  deprive  him.  But 
that  reason  does  not  hold  here;  for  the  action  is  not  for  damages  but 
debt  in  numero  ascertained  by  defendant's  own  obligation.  Be- 
sides, the  sheriff,  if  he  had  not  given  the  obligation,  might  have  re- 
turned the  property  to  the  next  bidder,  sold  again,  and  have  sued 
him  for  the  difference ;  or  might  have  made  a  special  return,  that 
the  premises  were  knocked  down  to  the  defendant,  and  that  he 
not  having  paid  the  purchase  money,  therefore  the  premises  re- 
mained unsold.  Zantzingcr,  v.  Pole,  1  DaJl.  458.  Or,  he  might, 
as  he  has  done  here,  return  them  sold,  tender  the  conveyance,  and 
sue  for  the  purchase  money  on  the  obligation.  For  the  obligation 
created  a  duty  to  pay,  and  the  remedy  of  the  sheriff  was  cumulative. 
We  have  now  come  to  the  two  formal  objections,  and  as  the  de- 
fence is  not  recommended  to  our  consideration  by  any  equity,  and 
the  plaintiff  has  a  clear  legal  right,  we  would  reluctantly  send 
his  cause  back  after  it  has  been  tried  on  its  merits,  on  nice  technical 
objections,  not  in  any  degree  affecting  the  merits.  But  if  the  de- 
fence did  appear  to  us  not  to  be  the  most  gracious,  still,  if  there  is 
uncured  and  incurable  error,  then  the  judgment  must  be  reversed. 
And  I  own  I  was  struck  with  the  imperfection  of  the  declaration. 
It  sets  out  the  conditions  of  sale,  but  does  not  allege  that  any  such 
sale  was  made.  It  is  but  the  fragment  of  a  count,  and  if  this  de- 
claration had  been  demurred  to,  the  demurred  must  have  been  sus- 
tained. But  the  plea  and  issue  and  verdict  cured  the  defect.  The 
plea  of  payment  admits  the  declaration  to  be  good.  But  it  is  not  ne- 
cessary to  depend  on  such  general  dictum  ;  for  in  a  much  contested 
and  well  considered  case  in  this  court,  Thompson  v.  Musser,  1 
Ball.  460,  the  action  was  in  debt  in  the  dctinet  on  a  penal  bill  for 


Dec.  1822.]  OF  PENNSYLVANIA.  165 

(Friedly  v.  Scheelz.) 

200,000  pounds  weight  of  tobacco,  by  which  Thompson  bound 
himself  in  the  penalty  of  200,000  pounds  to  pay  100,000.  The 
specific  error  alleged  was,  that  the  declaration  did  not  state  that 
Thompson  did  not  pay  the  smaller  quantity  of  100,000  on  the  day- 
fixed  for  payment,  so  that  no  cause  of  action  was  shown  to  have 
accrued  to  the  plaintiff  below  for  the  penalty.  The  court  decided 
that  the  defect  in  the  declaration  with  respect  to  the  amount  could 
not  be  taken  advantage  of  in  error,  though  it  might  on  demurrer ; 
it  was  cured  by  pleading  over  in  chief,  and  by  the  verdict.  But 
the  notice  of  the  special  matter  is  to  be  considered  as  a  part  of 
the  pleadings,  and  that  states  the  consideration,  and  that  a  sale  was 
made,  and  the  obligation  given  for  the  purchase  money,  and  in 
Zerger  v.  Sailor,  6  Binn.  24,  it  is  stated  as  a  general  principle, 
"  that  where  several  things  are  to  be  done  by  the  plaintiff,  prece- 
dent to  the  performance  of  the  defendant's  part  of  the  agreement, 
it  is  necessary  for  the  plaintiff  to  aver  performance  of  all  that  was 
to  be  done  by  him  ;  but  if  the  performance  of  apart  is  not  averred, 
and  it  appears  by  the  defendant's  plea,  or  by  his  notice  lender  the  plea, 
that  the  part  in  question  was  performed,  the  declaration  is  cured. 
And  the  court  there  say,  that  it  matters  not  whether  the  allegation 
be  in  the  plaintiff's  declaration,  or  defendant's  plea,  or  notice : 
it  is  sufficient  if  it  appear  on  the  record  in  either. 

The  last  objection  is  to  the  form  of  the  verdict  and  judgment. 
The  verdict. is  doubtless  informal,  for  it  ought  to  have  been  taken 
in  debt  for  the  sum  in  numero  demanded,  and  for  the  rest  in  da- 
mages as  the  whole  debt  was  found.  But  if  we  were  to  scan  with 
scrupulosity  the  records  of  the  courts  in  Pennsylvania,  examine 
them  with  scrutinizing  eyes,  very  few  of  them  could  bear  this  in- 
spection :  for  in  many  cases  we  have  brought  before  us  most  mis- 
shapen records.  Our  records  are  not  drawn  up  with  precision  and 
accuracy,  and  the  court  has  from  necessity  not  exacted  a  rigid  ad- 
herence to  forms,  but  requires  a  substantia]  compliance  with  the 
requisites  of  law,  and  if  after  every  reasonable  allowance,  this  is 
not  found  in  the  record,  the  proceedings  will  be  judged  erroneous. 
But  strict  form  is  not  now  required  in  verdicts.  It  is  only  to  be  un- 
derstood what  the  intention  was,  agreeably  to  which  the  verdict  may 
afterwards  be  moulded  into  form.  The  intention  of  the' jury  is  plain 
to  a  demonstration,  to  find  the  whole  debt  and  the  sum  beyond 
that  in  interest,  and  the  justice  of  the  case  clear,  and  the  mode  of 
entering  the  verdict  is  the  act  of  the  clerk,  a  mere  clerical  mistake, 
Hobb.  45.  2  Bicrr.  700.  Thompson  v.  Musser,  1  Dull.  462.  And 
Hobart  lays  down  a  just  rule,  that  though  the  verdict  may  not  con- 
clude finally  or  punctually  in  the  words  of  the  issue,  yet  if  the  point 
in  issue  can  be  concluded  out  of  the  finding,  the  court  shall  work 
the  verdict  into  form,  and  make  it  serve  according  to  the  real  jus- 
tice of  the  case.  As  this  might  have  been  amended  before  writ  of 
error  brought,  it  is  amendable  after,  and  ifnotdoneby  the  inferior, 
may  be  done  by  the  superior  court,  Gilb.  His.  C.  P.  19,  172.     If  the 


166  SUPREME  COURT  [Philadelphia.  ■, 

(Friedly  v.  Schcetz.) 

verdict  is  good,  the  judgment  is  likewise  so ;  for  being  entered  ge- 
nerally, if  drawn  at  large,  it  may  be  put  into  form,  and  as  the  merits 
have  been  tried,  justice  must  be  obtained,  without  being  entangled 
in  technical  niceties,  Thompson  v.  Masser,  1  Ball.  462.  This  is  a 
common  error  in  taking  verdicts  in  debt,  and  communis  error  facit 
jus  is  a  maxim  which  ought  in  this  instance  to  be  respected,  if  in 
any. 

Judgment  affirmed. 


[Philadelphia,  Dec.  30th,  182:1] 

►SLIFER  and  others  against  BEATES  and  another. 

EJECTMENT. 

T.  F.  by  bargain  and  sale,  conveyed  all  the  parts  and  purparts,  shares  and  dividends, 
of  him  the  said  T.  F.  in  the  messuages,  lots  of  ground,  lands,  ground  rents,  tene- 
ments, hereditaments,  and  real  estate,  which  his  father  lately  died  seised  of,  to 
two  trustees,  upon  trust,  that  they  and  the  survivor,  and  the  heirs  and  assigns  of 
the  survivor,  should,  during  the  natural  life  of  T.  F.  let  the  premises,  receive  the 
rents  and  income,  and  pay  the  surplus,  after  deducting  ground  rents,  &c.  into  the 
proper  hands  of  T.  F.  and  not  to  any  agent  he  might  appoint,  during  his  natural 
life,  or  apply  the  same  to  his  maintenance  :  and  from  and  after  his  decease,  in  trust 
for  his  children,  in  fee  simple,  and  in  case  he  left  no  children,  then  to  and  for  the 
use  of  the  right  heirs  of  the  said  T.  F.  for  ever.  Provided  always,  that  it  should 
be  lawful  for  T.  F.,  with  the  consent  and  approbation  of  the  said  trustees,  or  the 
survivor  of  them,  or  the  heirs  of  the  survivor,  by  any  deed  under  their  hands  and 
seals,  duly  executed  and  acknowledged,  to  grant  or  convey  all  or  any  part  of  the 
premises,  to  such  person  or  persons,  and  for  such  uses  or  estates,  as  the  said  T.  F. 
with  such  consent  and  approbation,  should  direct,  limit,  or  appoint.  The  real 
estate  of  the  father  was  afterwards  sold  by  order  of  the  Orphans'  Court,  and  with 
part  of  the  moneys  paid  to  the  trustees,  they  purchased  a  house  in  the  city  of 
Philadelphia,  which  was  conveyed  to  them  on  the  same  trusts  :  the  residue  was 
placed  and  continued  at  interest.  T.  F.  made  his  last  will  (subscribed  by  the 
trustees,)  reciting  their  approbation  and  consent,  testified  rby  their  subscriptions 
to  the  will,  and  devised  to  his  sister  M.  F.  in  fee,  all  the  residue  of  his  estate,  after 
payment  of  debts,  and  died,  leaving  the  said  M.  F.,  and  the  wives  of  the  plaintiffs, 
with  other  brothers  and  sisters,  his  heirs  at  law. 

Shortly  afterwards,  the  trustees  executed  a  deed  to  M.  Fv,  in  which,  as  far  as  the  same 
might  be  necessary,  they  gave  their  consent  and  approbation  to  the  said  devise,  and 
conveyed  the  estate  to  the  said  M.  F.  in  fee. 

Held,  that  the  power  reserved  by  T.  F.  was  not  well  executed,  and  that  the  plaintiffs 
were  entitled  to  a  share  in  the  house  purchased  by  the  trustees,  and  in  the  money 
at  interest. 

On  the  9th  September,  1806,  Thomas  Fromberger  of  German- 
town,  in  the  County  of  Philadelphia,  executed  and  delivered  to 
the  defendants,  a  deed  of  bargain  and  sale,  in  consideration^ 
one  dollar,  "of  all  the  parts  and  purparts,  shares  and  dividend,  of 
him  the  said  Thomas  Fromberger,  of  and  in,  all  and  singular  the 
messuages,  lots  of  ground,  lands,  ground  rents,  tenements,  he- 
reditaments and  real  estate,  whatsoever  and  wheresoever  the  same 
might  be  situate  which  his  deceased  father,  John  Fromberger, 
lately  died  seised  of,  or  entitled  to  in  possession,  reversion  or 


Dec.  1822.]  OF  PENNSYLVANIA.  1G7 

(Slifer  and  others  v.  Beates  and  another.) 

remainder,  or  otherwise  however,"  to  have  and  to  hold  rthe 
same  to  the  defendants,  upon  the  following:  trust  :  "  that  they,  the 
said  trustees,  and  the  survivor  of  them,  and  the  heirs  and  assig-ns  of 
the  survivor,  shall  and  do  from  time  to  time,  for  and  during-  all  the 
term  of  the  natural  life  of  him,  the  said  Thomas  Fromberger,  let 
and  demise  the  hereby  granted  premises,  at  and  for  the  best  rent 
and  upon  the  best  terms,  that  can  be  reasonably  obtained  for  the 
same,  and  receive  the  rents  and  income  thereof,  when  and  as  the 
same  shall  come  to  their  hands  and  receipt,  and  after  first  deducting;  all 
cost  and  expenses  of  ground  rent,  and  of  any  taxes,  and  repairs,  and 
reasonable  charges,  to  pay  over  the  surplus  thereof  into  the  proper 
hands  of  him  the  said  Thomas  Fromberger,  and  not  to  any  ag-ent 
he  may  appoint,  for  and  during;  all  the  term  of  the  natural  life  of 
him,  the  said  Thomas  Fromberger,  or  that  they  the  said  trustees 
do  and  shall,  from  time  to  time,  during"  the  said  term,  pay,  appro- 
priate, and  apply  the  said  rents  and  income  for  and  towards  his  sup- 
port and  maintenance.  And  from  and  immediately  after  the  decease 
of  him  the  said  Thomas  Fromberger,  then  in  trust  to  and  for  the 
only  proper  use  and  behoof,  of  all  and  every  the  child  and  children 
of  him,  the  said  Thomas  Fromberger,  their  heirs  and  assig;ns,  for 
ever,  in  equal  parts,  as  tenants  in  common,  and  not  as  joint-tenants. 
And,  in  case  he  should  leave  no  child  or  children,  or  issue  of  any  of 
them,  then  to  and  for  the  only  proper  use  and  behoof  of  the  right 
heirs  of  him,  the  said  Thomas  Fromberger,  for  ever.  Provided 
always,  nevertheless,  that  it  shall  and  may  be  lawful,  to  and 
for  the  said  Thomas  Fromberger,  with  the  consent  and  appro- 
bation of  the  said  trustees,  or  the  survivor  of  them,  or  the  heirs 
of  such  survivor,  by  any  deed  under  their  hands  and  seals,  duly 
executed  and  acknowledged,  to  grant  and  convey  all  or  any  part 
of  the  premises  hereby  granted,  unto  such  person  or  persons,  and 
for  such  uses  or  estates,  as  he,  the  said  Thomas  Fromberger, 
with  such  consent  and  approbation  as  aforesaid,  may  direct, 
limit,  or  appoint." 

In  the  year  1810,  the  real  estate  of  John  Fromberger,  deceased, 
was,  by  order  of  the  Orphans'  Court  of  the  City  and  County  of 
Philadelphia,  exposed  to  public  sale,  including-  all  the  premises 
mentioned  in  the  deed  of  1806  ;  when  the  same  was  sold,  and  a 
three  story  brick  messuage  in  Fromberger^  Court  in  the  City  of 
Philadelphia,  hereafter  referred  to,  was  sold  to  John  Grove?.  On 
the  22d  of  November,  1810,  the  said  John  Groves,  in  consideration 
of  3000  dollars,  paid  to  him  by  the  defendants,  out  of  the  moneys 
received  by  them  from  Thomas  Fromberger^  part  of  the  sales  of 
his  father's  estate,  conveyed  the  said  house  to  the  defendant's  upon 
the  same  trusts  which  are  mentioned  in  the  deed  of  180(5. 

The  residue  of  the  purpart  of  the  sales  of  John  Frombergei^s 
estate,  coming;  to  the  said  Thomas  Fromberger,  was  received  by  the 
trustees,  the  defendants,  or  one  of  them,  and  was  placed,  and  has 
£)een  kept  at  interest,  and  so  remains  at  this  time.     No  trust  was 


168  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Bcates  and  another.) 

ever  declared,  in  reference  to  the  said  personal  property,  unless  it 
may  be  considered  that  the  trust  in  the  deed  of  1806,  is  applicable 
to  it. 

On  the  7th  day  of  December,  1814,  the  said  Thomas  Fromberger, 
made  his  last  will  and  testament,  under  his  hand  and  seal,  as  fol- 
lows : 

"  Be  it  remembered,  that  I,  Thomas  Fromberger,  of  the  County  of 
Philadelphia,  do  hereby,  with  the  approbation  and  consent  of  John 
Greiner  and  Frederick  Beates,  of  the  City  of  Philadelphia,  trustees  by 
me  appointed,  testified  by  their  subscribing  these  presents,  as  witnesses 
to  the  execution  hereof  make  my  last  will  and  testament,  in  manner 
following,  that  is  to  say  :  first,  I  will,  that  all  my  just  debts  and 
funeral  expenses  shall  be  duly  paid  and  satisfied :  and  all  the  rest 
and  residue  of  my  estate,  whatsoever,  I  give,  devise  and  bequeath 
unto  my  sister,  Maria  Fromberger,  to  hold  to  her,  her  heirs,  ex- 
ecutors, administrators,  and  assigns,  for  ever.  And  I  do  hereby 
nominate  and  appoint  her  executrix  of  this  my  last  will  and  testa- 
ment. 

"  Lastly,  I  do  hereby  revoke  all  wills  and  testaments  by  me,  at 
any  time  heretofore,  made  and  published." 

The  defendants  did  consent  to,  and  approve  the  said  will,  and 
subscribed  the  same  as  witnesses.  In  the  month  of  January,  1819, 
the  said  Thomas  Fromberger  died,  unmarried,  and  without  issue, 
leaving  the  said  Maria,  his  sister  and  devisee,  surviving,  and  also 
Catharine  Slifer  and  Sarah  White,  the  wives  of  the  plaintiff's  his 
sisters,  together  with  the  other  sisters,  brothers,  or  their  issue. 

The  said  last  will  was,  on  the   18th  of  the  same  month,  duly 
proved  before  the  Register,  for  the  City  and  County  of  Philadel- 
phia, and  letters  testamentary  thereon  granted  to  the  said  Maria. 
On  the  10th  February,  1819,  the  defendants  executed  and  delivered 
to  the  said  Maria  Fromberger,   a  deed    poll  of  the  following*  te- 
nor, which  was  duly  acknowledged  on  the  same  day,  before  An- 
drew Petit,  an  Alderman  of  the  said  city,  viz  :    To  all  to  whom  ihese 
presents   shall  come.     Whereas    Thomas  Fromberger,  late  of  the 
City  of  Philadelphia,  deceased,  by  a  certain  instrument,  under  his 
hand  and  seal,  bearing  date  the  7th  day  of  December,  1814,  now 
remaining  in  the  Register's  Office  for  the  City  and  County  of  Phila- 
delphia,  did  give  and  appoint  unto   his   sister  Maria   Fromberger 
all  the  residue  of  his  estate,  after  payment  of  his  debts  and  funeral 
expenses,  to  hold  to  her,  her  heirs,  executors,  administrators,  and  as- 
signs, for  ever.     Now,  be  it  known,  that  we  Frederick  Beates  and 
John  Greiner,  trustees  of  the  estate  of  the  said  Thomas  Fromberger, 
do,  by  these  presents,  so  far  as  the  same  may  be,  on  our  parts,  ne- 
cessary and  lawful,  but  no  farther,  and  by  virtue  of  all  powers  in  us 
invested,  as  said  trustees,  give  our  consent  and  approbation  to  the 
said  instrument  of  gift  or  appointment  by  the  said  Thomas  From- 
berger, and  do  hereby,  so  far  forth  as  may  be  necessary  and  lawful 
for    us,  but  no  further,  give,  grant,   aliene  and  convey  unto  the 


Dec.  1822.]  OF  PENNSYLVANIA.  169 

(Slifcr  and  others  v.  Beafes  and  another.) 

said  Maria  Fromberger,  all  the  estate  whatsoever,  in  the  said  in- 
strument referred  to :  to  have  and  to  hold  the  same  to  the  said. 
Maria  Fromberger,  her  heirs,  executors,  administrators  and  as- 
signs."    The  questions  submitted  to  the  court  were : 

1st,  Whether  the  plaintiffs  are  entitled  to  any  part  of  the  house 
in  Fromberger^s  Court. 

2d,  Whether  they  are  entitled  to  any  portion  of  the  personal 
property  before  mentioned. 

If  the  court  shall  be  of  opinion  with  the  plaintiffs,  on  either  point, 
then  judgment  to  be  for  the  plaintiffs,  and  the  terms  of  it  to  be  set- 
tled by  the  attorneys:  such  judgment  not  to  affect  the  question  of 
the  personal  liability  of  defendants,  or  either  of  them,  in  any  way. 

Athei*ton  <§•  Condy  for  the  plaintiff  in  error.  The  case  turns  on 
the  proviso  in  the  deed  from  Thomas  Fromberger  to  the  defen- 
dants :  we  say  that  the  power  reserved  to  Thomas  Fromberger  by 
the  proviso,  has  not  been  executed.  The  power  was  to  have  been 
executed  by  deed,  whereas  he  made  a  will,  and  not  a  deed.  The 
nature  of  the  instrument  specified  in  the  power  must  be  observed. 
A  power  to  revoke  by  deed,  cannot  be  executed  by  making  a  will. 
3  Cruise  on  Real  Est.  252.  Doug.  260.  The  person  creating  a 
power,  may  direct  its  execution  as  he  thinks  proper.  3  Cruise, 
247.  It  is  evident,  that  the  power  here  reserved  to  Thomas 
Fromberger,  was  to  be  executed  by  deed :  because  he  was  to  grant 
and  convey,  which  could  only  be  by  deed.  There  was  no  assent 
of  the  trustees  by  deed,  until  after  the  death  of  Thomas  Fromber- 
ger. The  ceremonies  directed  by  the  person  creating  a  power 
cannot  be  dispensed  with.  3  Cruise,  247.  Equity  will  not  sup- 
ply a  defective  execution  in  favour  of  a  voluntary  conveyance. 
(This  was  admitted  by  Mr.  Binney.)  If  a  deed  directed  to  be  en- 
rolled in  a  particular  court,  it  must  be  so  enrolled,  or  the  power  is 
not  well  executed.  3  Cruise,  248.  10  Co.  144.  1  Co.  173. 
Digges's  Case. 

It  was  not  in  the  contemplation  of  Thomas  Fro?7iberger,  when 
he  made  the  deed  of  trust,  that  the  nature  of  the  property  should 
be  changed.  The  land  was  sold  by  order  of  the  Orphans'  Court, 
on  a  petition  for  a  partition,  because  the  inquest  returned,  that  it 
could  not  be  divided.  The  operation  of  the  law,  will  not  convert 
the  land  into  money  against  the  consent  of  the  parties.  Money 
ordered  to  be  invested  in  land,  is  considered  as  land,  and  vice  versa. 
This  trust  deed  was  made  when  the  father's  estate  was  undivided, 
and  Thomas  Fromberger  knew  that  it  might  perhaps  be  sold  by 
order  of  the  Orphans'  Court.  And  after  it  was  sold,  he  suffered 
the  trustees  to  take  possession  of  the  money.  When  part  of  the 
money  was  invested  in  a  house,  the  deed  was  made  to  the  same 
trustees,  and  on  the  same  trusts. 

Binney,  for  defendants.  1.  The  trust  created  by  this  deed  does 
not  embrace  personal  estate.  2.  The  power  as  to  the  real  estate 
is  well  executed.     3.  The  use  or  trust  limited  to  the  right  heirs  of 

VOL.  ix.  Y 


170  SUPREME  COURT  [Philadelphia. 

(Slifer  and  others  v.  Beatcs  and  another.) 

Thomas,  is  one  which  they  must  take  by  descent,  consequently  it 
was  in  him,  and  will  pass  by  his  will. 

1.  The  trusts  of  the  deed  of  the9th  September;  1806,  are  wholly  un- 
applicable  to  personal  property.  That  deed  looked  to  the  continu- 
ance of  the  paternal  estate  in  land  and  houses.  It  did  continue  so 
four  years,  and  was  then  changed  by  the  sale  under  the  decree  of 
the  Orphans'  Court.  The  deed  creates  a  trust  to  lease  and  nothing 
further,  to  collect  the  rents  and  pay  them  to  him,  or  for  his  use 
during  his  life,  after  his  death  to  his  children,  and  on  failure  to  his 
right  heirs.  The  power  reserved  is  to  convey  with  approbation 
of  the  trustees,  or  survivor  or  his  heirs,  the  whole  or  any  part  of 
the  premises,  for  such  estate  as  Thomas  may  limit,  direct  or  ap- 
point. No  power  in  trustees  to  grant  or  to  sell,  or  mortgage,  or 
in  any  way  convert  into  personalty.  Whether  Thomas  supposed 
these  trusts  and  the  power  applicable  to  the  personal  property  is- 
immaterial,  for  he  supposed  he  could  dispose  of  it  as  he  has.  The 
question  is,  how  is  the  law  \  Now  where  the  whole  character  of 
the  fund  is  changed  by  a  sale  under  paramount  authority,  and  the 
old  trusts  are  inapplicable  to  the  new  fund,  in  such  a  case  as  the 
present  the  trust  is  gone.  There  is  no  doubt  an  interest  in  the 
grantor,  from  whom  all  has  proceeded,  and  who  has  parted  with 
nothing  except  for  a  nominal  consideration ;  but  the  specific  trust 
is  gone. 

This,  it  is  to  be  recollected,  is  a  voluntary-  settlement,  without  a 
vested  equitable  interest  in  any  one  but   Thomas.     If  equity  were 
called  upon  to  re-mould  the  trusts,  after  they  have  been  broken  up 
by  the  sale,  at  whose  instance  could  it  be  asked  1     Suppose  a  house 
settled  in  this  way,  and  sold  under  a  prior  judgment,  how  is  the 
balance  of  sales  to  go  1     They  belong  to  the  settler,  but  if  he  does 
not  settle  them  anew,  who  is  to  ask  it  ?     Is  the  money  still  land, 
to  go  to  the  heir,  or  money  to  go  to  the  next  of  kin?     Is  the  heir 
of  the  trustee  to  take  it,  or  his  executor.     In    Yohe  v.  Barnett,  1 
Binn.  358,  the  court  said  it  became  personal  property.     This  court 
has  no  power  to  settle  it  anew,  nor  to  treat  it  as  so  settled.     A 
court  of  Chancery  would  not  do  it  between  these  parties.     The 
claimants  under  this  settlement  are  volunteers,  and  the  devisee  is 
no   more.     The  parties  are  not  younger  children,  nor  wife,  nor 
creditors,  nor  purchaser.     In  such  a  case  equity  will  not  act.     The 
claimant  must  make  out  his  case  without  the  aid  of  chancery,  or 
he  is  without  relief.     Francises  Max.  61  Max.  14,  15,    16.     Bil- 
lingham  v.  Lowther,  1    Chan.  Ca.  243.     Anon.   2    Chan.  Ca.  133. 
Goodwin    v.     Goodwin,    1     Chan.    Rep,     173,      Wilmer    v,    Ken- 
dricky  1    Chan.    Ca,  159.      Goodrich  v.   Brown,   1    Chan.  Ca.   49, 
Lee  v.  Henley }  1  Vern,  37.     Fitz  Edward  v.  Ryves,!  Bio.  P.  C, 
417.     The   case  is  worse   in  Pennsylvania.     There  are   no  ade- 
quate powers  to  meet  the  intention  of  the  settlement.     If  this  per- 
sonalty is  to  be  subject  to  the  trusts  as  real  estate,  it  must  be  taken 
by  the  cestuis  que  trust  as   such.      Then  the   sisters  of  Thomas 


1 


Dec.  1822.]  OP  PENNSYLVANIA.  171 

(Slifer  and  others  v.  Bales  and  another.) 

should  take,  and  not  their  husbands,  except  the  profits  during1  life. 
But  it  is  clear  from  Yohe  v.  Barnet,  that  this  cannot  be.  Then  the 
fund  should  be  regarded  as  personalty  throughout,  and  as  such  not 
subject  to  this  settlement.  A  trust  must  take  effect  according  to  the 
whole  interest  or  not  at  all.     Mog.  v.  Hodges,  2  Ves.  54. 

2.  Has  the  power  been  well  executed  ?  There  are  certainly  ob- 
jections to  it,  but  these  are  circumstances,  which  perhaps  may  be 
thought  to  obviate  them.  The  power  is  reserved  by  and  to  the 
owner  in  a  voluntary  conveyance,  and  is  to  be  more  liberally  con- 
strued than  one  to  a  stranger.  16  Vin.  470.  pi.  19.  Sayle  v.  Free- 
land,  Ventr.  350.  16  Vin.  477.  pi.  4.  Pollard  v.  Greenville, 
1  Chan.  Rep.  185.  Gooding  v.  Gooding,  1  Eq.  Ca.  Mr.  342. 
Lord  Hobart  says  that  judges  should  be  astute  and  subtile  to  assist 
the  intention  of  the  parties,  rather  than  work  a  wrong  by  enforcing 
rigid  rules.  Hob.  227,  Earl  of  Clanrickard's  Case.  Hob.  312, 
Kibbet  v.  Lee.  The  limitation  or  appointment  by  will  may  be  sup- 
ported because  the  appointment  of  Thomas  is  not  required  to  be  by 
deed,  or  in  any  particular  way.  The  approbation  and  consent  of 
the  trustees  are  to  be  by  deed,  but  not  his  appointment.  The  clause 
is  otherwise  absurd  ;  for  if  he  is  to  convey  by  deed,  then  the  clause 
will  read,  "  it  shall  be  lawful  for  the  said  Thomas  by  any  deed 
under  the  hands  and  seals  of  the  trustees,"  to  grant.  The  true 
reading  is,  it  shall  be  lawful  for  the  said  Thomas  to  grant,  dCc.  with 
the  consent  and  approbation  of  the  trustees  by  any  deed  under  their 
hands  and  seals.  If  this  view  be  just,  Thomas  has  well  executed 
the  power  by  will ;  he  certainly  intended  to  do  it,  and  his  will  is  a 
sufficient  mode  of  doing  it.  Powell  on  pow.  57.  Sugden  on  pom. 
222,  224.  Kibbet  v.  Lee,  Hob.  312.  Burnet  v.  Manns,  3  Ves. 
158.  If  deed  be  not  required  in  terms,  the  will  is  a  sufficient  grant 
or  conveyance.  The  more  difficult  question  is  whether  the  consent 
should  have  been  given  in  Fromberger's  life.  The  settlement  does 
not  call  for  a  deed  of  consent  eo  instanti  of  the  appointment;  and 
if  not  he  might  appoint,  and  they  consent  subsequently.  At  com- 
mon law  when  the  Bishop  could  not  aliene  without  consent  of  the 
Dean  and  Chapter,  it  was  holden  that  such  assent  might  be  given 
before  or  after  the  deed  of  alienation,  and  by  the  same  or  a  different 
instrument.  Ford's  Case,  5  Rep.  81.  There  was  no  necessity »for 
making  the  appointment,  and  giving  the  consent  by  one  instrument. 
Two  will  do  as  well.  Porter  v.  Turner,  3  Serg.  <§•  Raivle. 
115.  Eat  I  of  Leicester's  Case,  1  Ventr.  278.  Herring  \. 
Brown,  2  Shoiv.  185.  Sugden  on  Pow.  229.  Consent  after 
the  death  of  Thomas  is  effectual.  Where  land  could  not  pass  with- 
out presentment  of  the  feoffment  by  the  homage  at  the  next  court, 
it  was  holden  that  a  presentment  according  to  the  custom,  after  the 
death  of  the  feoffer  or  feoffee  was  good.  Ferryman's  Case,  5 
Rep.  84. 

3.  The  limitation  is  to  the  right  heirs  of  Thomas.     Either  this 
was  part  of  his  old  estate,  which  his  heirs  would  take  by  descent, 


172  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  r.  Beates  and  another.1) 

unless  he  devised  it,  or  it  was  a  trust  in  fee,  which  united  to  his 
trust  for  life,  so  as  to  bring  in  his  heir  in  like  manner  by  descent, 
though  it  was  subject  to  open  and  let  in  the  contingent  trusts  to  his 
children.     In  either  case,  his  will  passes  it. 

It  is  part  of  his  old  estate,  or  the  reversion  in  him  after  his  estate 
for  life,  and  the  contingent  uses  to  his  children  are  satisfied.  He 
might  therefore  devise  it,  settle  it  and  the  like :  and  his  heir  takes 
it  by  descent,  and  not  by  purchase.  Fenvnck  v.  Mitfonl,  Moo?',  282, 
1  Inst.  22.  Earl  of  Bedford's  Case,  Moor,  718,  Jenk.  Cent. ,248. 
Reade  v.  Morpeth,' Cro.  Elk.  321.  Fearne,  51.  The  use  to  the 
right  heirs  of  Thomas  was  executed  in  himself  in  fee, 

"But  if  this  be  objected  to  in  consequence  of  the  nature  of  the 
deed  by  which  the  settlement  was  made,  or  for  any  other  cause, 
and  the  limitation  to  the  right  heirs  is  taken  not  as  a  use,  but  as  a 
trust  which  the  heirs  will  take  as  purchasers,  the  answer  is  that  this 
cannot  be,  because  by  the  same  instrument  there  is  a  trust  to  Tho- 
mas for  life,  with  which  the  trust  to  the  right  heirs  unites,  exactly  as 
in  the  case  of  a  legal  estate.     Whether  the  remainder  be  a  use  or 
a  trust  is  of  no  consequence,  because  it  is  of  the  same  nature  as  the 
life  estate  to  Thomas,  and  either  way  unites  with  it,  and  becomes 
an  executed  trust  or  use  in  fee,  subject  only  to  open  and  let  in  the 
contingent  estate  to  the  children.     Either  way,  consequently,  the 
heirs  would  take  by  descent,  and   Thomas  could  devise  it.     The 
rule  in  Shelley's  case  applies  where  both  the  estates  are  equitable 
or  both  legal :  it  is  only  where  one  of  the  estates  is  legal  and  the 
other  equitable,  and  in  cases  of  what  are  called  executory  trusts, 
trusts  resting  in  articles  or  testamentary  directions  which  a  subse- 
quent instrument  is  to  execute,  that  the  two  estates  are  kept  apart, 
so  as  to  make  the  heirs  purchasers.     The  authorities  are  clear  to 
this  point.    1st.  When  both  are  trusts,  or  both  uses  executed.    Bale 
v.  Coleman,  2    Vern.  670.     1   P.    Wms.  110.      Garth  v.  Baldwin. 
2  Ves.  646.     Wright  v.   Pearson,  Ambl.   358.     Fearne,  52,  107. 
2d.     Where  one  is  a  trust,  and  the  other  a  use  executed.      Tippen 
v.  Cosin,  Carth.  272.    Lord  Say  8f  Seal,  1  Ey.  Ca.  Mr.  383,  a  case 
cited  for  the  plaintiffs.     Fearne  58,  59  note  d,  citing  the  case  of  Ve~ 
nobles  v.  Morris,  7  D.  fy  E.  342.     3c?.  Where  the  trusts  are  execu- 
tory, Trevor  v.    Trevor,  1   Eq.  Abr.  387.     Streatjield  v.  Streatjield, 
Cas.  temp.  Talbot,  176.    Papillon  v.  Voice,  2  P.  Wms.  471.    Lord 
Glenorchy  v.  Bosville,  Cas.  temp.  Talbot,  3.    Austin  v.  Taylor,  Ambl. 
376.     Jones  v.  Morgan,  1  Bro.   C.  C.  206,  Fearne  107,  136,  143. 
Consequently,  as  the  two  estates  are  here  of  the  same  description, 
they  are  executed,  in   Thomas,  either  as  trusts  or  a  use,  and  the 
heirs  will  take  by  descent.     As  to  the  intervening-  contingent  estate, 
it  does  not  prevent  the  union.     Leivis  Bowie's  Case,  11  Rep.  80. 
The   result  of  the  whole,  is,  that  Maria,  sister  of   Thomas  From- 
berger  will  take  by  his  will,  whether  it  be  or  be  not  an  execution  of 
the  power  of  appointment. 

Reply,     Iu    answer   to    the    first   point,  namely,  that    Thomas 


Dec.  1822.]  OP  PENNSYLVANIA,  173 

(Slifer  and  others  v.  Beates  and  another.) 

Fromberger  had  power  to  devise  this  property  independently  of  the 
deed  of  trust,  it  is  sufficient  to  say  that  the  heirs  of  Thomas  From- 
berger, the  plaintiffs,  claim  as  purchasers.  All  the  cases  cited  are 
of  uses  executed,  but  the  present  is  a  case  of  trust.  If  land  be  given 
to  one  in  trust  to  receive  the  profits  and  pay  to  another,  it  is  not 
a  use  executed.  If  there  be  a  trust  estate  for  life,  with  legal  re- 
mainder to  the  heirs  of  the  same  person,  the  heirs  take  by  purchase. 
Lord  Say  8f  Seal  v.  Jones,  3  Brown,  P.  C.  113.  1  Eq.  Ab.  383. 
Bagshaw  v.  Spencer,  1  Vez.  142,  147.  Where  the  particular  estate 
in  the  ancestor,  and  the  estate  given  to  his  right  heirs,  are  of  a  dif- 
ferent nature,  the  estates  do  not  unite.  In  all  new  instruments 
the  intention  is  chiefly  to  be  regarded.  We  agree  that  powers  re- 
served by  owners  of  estates  to  themselves  should  be  construed  li- 
berally. But  that' rule  is  not  applicable  to  a  case  like  the  present, 
where  the  owner  vested  his  estate  in  trustees,  in  order  to  prevent 
himself  from  giving  away  or  destroying  his  estate.  If  a  man  will 
improvidently  bind  himself  by  a  voluntary  deed,  chancery  will 
not  loose  his  hands.  Here  the  intent  was,  that  TJiomas  Fromberger 
should  exercise  no  power  over  this  estate,  except  in  the  manner 
specified  in  the  proviso,  and  if  so  it  is  immaterial  what  interest 
Thomas  Fromberger  reserved  to  himself.  The  trust  deed  vests 
the  legal  estate  completely  in  the  trustees ;  the  trust  to  receive  the 
rents  and  pay  them  to  Thom,as  Fromberger,  is  a  trust  to  be  exe- 
cuted. It  would  destroy  the  main  intent  of  the  deed  of  the  trust  if 
the  money  was  not  to  be  governed  by  it. 

As  to  the  execution  of  this  power,  the  intent  was  that  Thomas 
Fromberger  should  do  nothing  without  the  consent  of  the  trustees, 
and  this  consent  should  have  been  given  before  he  acted.  They 
ought  all,  Thomas  Fromberger  and  the  trustees,  to  join  in  the 
same  deed.  The  intent  was  that  Thomas  Fromberger  should  know 
of  the  consent  of  his  trustees  at  the  time  he  made  the  conveyance. 
There  should  be  a  previous  consultation  and  irrevocable  consent. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  facts  are  so  clearly  and  concisely  stated  in 
the  case  submitted  to  the  court,  that  it  is  unnecessary  to  re-state 
them. 

The  first  question  on  this  statement  is,  had  Thomas  Fromber- 
ger an  interest  in  the  estate  which  he  could  dispose  of  as  owner  ? 
In  other  words,  was  it  his  own,  or  had  he,  under  the  conveyance, 
a  naked  power  ?  If  he  continued  the  owner  of  the  ultimate  fee, 
the  plaintiffs  cannot  recover  ;  if  he  had  only  a  power,  a  second  ques- 
tion arises,  has  that  power  been  duly  executed  in  the  prescribed 
form.  A  third  point  has  been  made,  or  rather  doubt  suggested, 
whether  the  sale  under  the  decree  of  the  Orphans'  Court  operated 
so  as  to  destroy  the  subject  matter  of  the  trust,  and  leave  that  into 
which  it  was  converted,  money,  under  the  dominion  of  Thomas, 
as  if  no  conveyance  had  ever  been  made  to  the  defendants.     The 


174  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Beate9  and  another.) 

plaintiffs  claim  under  this  conveyance  as  cestuis  que  trust,  from 
the  defendants  as  trustees,  the  execution  of  the  trusts  declared.  The 
trustees,  claiming  nothing  for  themselves,  but  desirous  of  acting 
as  the  court  shall  decree,  interpose  the  claim  of  Maria  Fromber- 
ger,  who  claims  the  whole  estate,  contending,  that  Thomas  From- 
berger,  held  the  reversion  of  the  estate  undisposed  of  by  the  deed 
of  trust,  and  if  he  did  not,  that  he  has  executed  the  power  reserved 
by  him  in  that  deed.  This  will  be  considered,  first,  on  the  grant- 
ing clause,  and  trusts  declared,  without  relation  to  the  power  re- 
served ;  and  secondly,  in  conjunction  with  the  proviso  or  restrain- 
ing clause.  The  first  is  a  question  of  considerable  intricacy,  and 
opens  an  extensive  field  of  inquiry  into  the  doctrine  of  uses  and 
trusts,  of  limitation  and  of  purchase.  Of  these  doctrines  it  has 
been  long  since  remarked,  that  they  had  been  very  good  clients  in 
Westminster  Hall,  and  they  continue  to  be  found  constant  suitors 
in  these  courts.  In  our  courts  the  doctrine  of  uses  and  trusts  is 
not  a  very  familiar  one.  Few  cases  have  occurred,  in  which  this 
very  abstruse  doctrine  has  been  considered,  and  I  have  not,  in  the 
reports  of  decisions  in  other  states,  found  one  that  has  any  bearing 
on  this  question.     The  English  reports  abound  with  them. 

It  is  my  intention  to  compress  into  as  narrow  a  compass  as  is 
consistent  with  any  perspicuity  of  argument,  the  observations  I 
have  to  make  on  the  driest  of  all  subjects. 

It  is  necessary  to  keep  in  mind,  that  the  conveyance  to  the  de- 
fendants was  by  bargain  and  sale,  and  not  by  covenant  to  stand 
seised  to  uses,  or  by  feoffment.  The  effect  of  these  instruments 
is  very  different,  as  we  shall  presently  see. 

There  are  some  clear  principles,  which,  unless  I  very  much  mis- 
understand them,  when  applied  to  this  conveyance,  are  decisive  in 
favour  of  the  plaintiffs'  construction. 

First.  A  man  cannot  raise  a  fee  simple  to  his  own  right  heirs, 
by  the  name  of  heirs,  as  a  purchaser,  unless  he  parts  with  the 
whole  estate.  Co.  Litt.  22.  a.  2  Bl.  Rep.  687,  and  Fearne,  (4th 
ed.)  67. 

Second.  Whatever  portion  of  the  estate  or  use  is  not  disposed  of 
remains  in  the  person  who  disposes,  and  will  descend  to  his  right 
heirs :  for,  being  part  of  the  old  estate,  it  shall  continue  to  go,  as  if 
no  disposition  had  been  made  of  it.  Co.  Litt.  23.  3  P.  Wms. 
63.  1  Fearne  48.  Sanders  on  uses  and  trusts,  101  to  105.  1 
Fearne,  43.      Wat/cins  on  Descent,  169. 

Third.  Where  the  same  use  is  limited  to  the  owner  of  the  estate, 
which  would  have  resulted  to  him,  in  case  no  declaration  of  that 
use  had  been  made,  the  declaration  is  void,  and  he  takes  it  as  a  re- 
sulting use.  Cruise  on  Uses,  197.  The  leading  case  is  Reade  v. 
Morpeth,  Cro.  Eliz.  825,  and  Moore,  284,  (by  the  name  of 
Fenwick  and  Mitford.)  Anthony  Mitford,  being  seized  in  fee 
of  the  estate,  conveyed  the  same  to  the  use  of  his  eldest  son  Jasper, 
and  Margaret  his  wife,  and  of  the  heirs  male  of  the  body  of  Jas- 


Dec.  1822.]  OF  PENNSYLVANIA.  175 

(Slifer  and  others  v.  Beales  and  another.) 

per,  remainder  to  the  use  of  the  right  heirs  of  Anthony.  It  was 
unanimously  resolved,  "  that  the  use  limited  to  the  right  heirs  of 
Anthony,  was  the  ancient  use  in  him,  and  was  never  out  of  him, 
and  was  in  him  as  a  reversion  to  grant  or  charge,  and  should  descend 
from  him  to  his  heirs,  as  if  it  had  not  been  mentioned,  and  that  the 
limitation  to  his  right  heirs  was  void,  being  no  more  than  the  law 
vested  in  him  ;"  and  this  rule  takes  place  in  all  conveyances  to  uses 
which  operate  without  transmutation  of  possession,  as  a  covenant  to 
stand  seized,  or  bargain  and  sale,  where  the  use  arises  out  of  the  es- 
tate of  the  bargainor  and  covenantor.  For  in  these  cases,  so  much  of 
the  use  as  the  covenantor  and  bargainor  does  not  dispose  of,  still 
remains  in  him,  as  his  old  estate,  and  is  usually  called  a  use  by  im- 
plication.    Cruise  on  Uses,  198. 

Fourth.  It  is  a  clear  principle,  that  a  use  cannot  be  limited  on  a 
use.  All  subsequent  uses  are  trusts,  and  as  the  trustees  were  to 
lease,  receive  the  rents,  pay  the  taxes  and  ground  rents,  make  re- 
pairs, and  pay  only  the  surplus  to  Thomas,  and  to  him  in  person,  the 
legal  estate  was  necessarily  vested  in  them  to  enable  them  to  per- 
form the  trusts.  If  the  trusts  had  been  to  permit  Thomas  to  receive 
the  rents,  and  the  deed  had  been  a  deed  of  feoffment,  the  use  would 
execute  in  him,  and  he  would  hold  the  legal  estate.  The  cases  are 
collected  by  Sergeant  Williams,  in  his  edition  of  Saunders,  2  Saund. 
11.  Whether  the  use  is  executed  in  fee  simple  in  the  trustees, 
(the  whole  use,)  is  to  depend  on  the  intention  of  the  grantor, 
to  be  collected  from  the  whole  grant,  and  from  the  whole  scope 
and  plan  of  the  instrument.  A  clear,  definite,  and  unambiguous  in- 
tention is  demonstrable  to  execute  all  the  uses  in  the  trustees ;  to 
leave  in  Thomas  no  use,  or  remnant  of  the  old  estate,  or  grant  to 
him  any  ulterior  limitation.  Maintenance  for  life,  provision  for  his 
children,  if  he  left  any,  and  if  he  did  not  leave  any,  then  to  his 
heirs,  to  divest  himself  of  every  dominion  and  ownership,  and  to  re- 
serve not  even  a  power  to  alter  these  trusts  to  himself,  unless  ex- 
ecuted conjointly  with  the  trustees,  to  effectuate  this  intention,  could 
only  be  by  vesting  all  the  estate  and  all  the  uses  in  the  trustees. 
These  were  all  within  the  view  of  Thomas,  and  intended  to  be  pro- 
vided for  by  the  family  settlement. 

Fifth.  The  material  difference  between  a  bargain  and  sale  in 
fee,  and  a  feoffment  in  fee,  consists  in  this :  the  seisin  of  the  fe- 
offee is  such  as  will  serve  a  use  declared  to  the  feoffor  himself, 
to  the  feoffee;  or  to  a  stranger,  or  to  all  of  them  ;  but  the  seisin 
of  the  bargainor  can  only  serve  the  use  which  is  bargained 
and  sold  to  the  bargainee,  and  the  uses  on  a  bargain  and  sale, 
can  only  be  vested  in  the  bargainee,  and  as  such  use  is  for  a 
valuable  consideration,  bargained  and  sold  to  him,  there  is  no 
possible  seisin  in  the  bargainor  to  serve  any  uses  in  abridgment 
of  that  previously  conveyed  to  the  bargainee  ;  and  as  there  can 
be  no  possibility  of  seisin  in  the  bargainor  after  a  bargain  and 
sale,  the  only  way  that  the  use,  sold  to  the  bargainee,  can  be 


176  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Beates  and  another.) 

avoided  or  abridged  is,  to  annex  a  condition  of  entry  to  the  bar- 
gain and  sale,  on  the  happening  of  a  particular  event.  Sanders  on 
Uses,  321. 

If  there  can  be  no  further  declaration  of  a  use,  because  where  the 
bargain  and  sale  is  in  fee,  the  whole  use  is  executed  in  the  bar- 
gainee, it  must  follow,  that  there  can  be  no  resulting  use.  If  from 
the  nature  of  the  instrument  there  can  be  no  express  use  declared 
to  the  bargainee,  there  can  be  no  implied  or  resulting  use.  Gilb.  Uses 
and  Trusts,  166,  considering  uses  limited  on  uses  as  out  of  the  sta- 
tute, gives  the  reason.  If  a  man  bargains  and  sells  his  lands  to  A., 
to  the  use  of  B.,  the  statute  cannot  execute  the  use  in  B.:  for  by 
the  bargain  and  sale,  which  implies  a  consideration,  there  is  a  use 
in  A.,  and  before  the  statute  it  was  impossible  that  two  distinct 
persons  should  have  the  use  of  the  same  land,  and  by  the  statute, 
the  first  use  cannot  be  executed  in  A.,  since  there  could  not  be  two 
plenary  possessors,  and  the  second  use  being  contrary  to  the  dispo- 
sition to  A.,  must  be  null  and  void  :  but  the  chancery,  that  looks 
upon  the  intent  of  the  parties  in  conveyances,  construes  A.  only  as 
an  instrument  to  take  the  legal  estate,  and  that  in  conscience  he  is 
bound  to  answer  the  trust  to  B.,  which  he  hath  taken.  Cruise  on 
Uses,  97,  is  to  the  same  effect.  And  Sugden  on  Powers,  10,  says, 
the  statute  vests  the  legal  estate  in  the  bargainee,  and  the  law  will 
not  advert  to  the  trust  declared  in  favour  of  any  other,  but  chancery 
seized  hold  of  this  narrow  construction,  and  accordingly  determined, 
that  he  was  in  conscience  a  trustee,  and  should  be  compelled  to  con- 
vey to  cestui  que  trust.  The  reason  why  on  a  feoffment,  the  fe- 
offee is  in  of  his  reversion  is,  because  no  alteration  is  made  of  the 
reversion  ;  and  because  the  use  never  separates  from  the  possession. 
Moor,  310,  Englefield' 's  Case.  Fearne,  in  treating  this  doctrine, 
explains  the  cases  of  Fenwick  v.  Mitford  and  Pybus  v.  Mitford, 
1  Vent.  372.  Penhay  v.  Hurrell,  2  Freeman,  231,  235,  238, 
and  2  Vern.  370,  and  puts  the  question  thus  :  "  where  the  convey- 
ance to  uses  enures  by  way  of  transmutation  of  possession  as  by 
fine  or  feoffment,  fyc,  the  use  should  result  and  be  implied  out  of 
the  seisin  of  the  feoffees  or  assignees,"  and  says,  on  the  strength 
of  Lord  Coke's  opinion,  and  the  concurrent  authority  of  Lord  Chief 
Justice  Hale's  opinion  in  Pybus  fy  Mitford,  that  as  well  in  a  fine 
or  feoffment,  as  a  covenant  to  stand  seized  to  uses,  so  much  of  the 
use  as  a  man  does  not  limit  away,  remains  in  himself.  1  Fearne, 
39.  So  the  question  turns  on  this  hinge  alone  ;  did  any  use  remain 
in  the  owner?  The  whole  use  was  executed  in  the  bargainees.  The 
whole  estate  vested  in  them  and  their  heirs.  There  was  no  use 
executed  in  the  bargainor  by  express  limitation.  There  could  be 
no  use  by  implication  or  resulting  use,  for  this  is  contrary  to  the 
very  nature  of  bargain  and  sale  in  fee  simple.  A  use  was  raised  to 
the  bargainees  by  the  consideration  ;  for  even  in  a  feoffment,  where 
there  is  a  consideration  to  raise  a  use  in  the  feoffee,  there  can  be  no 
resulting  use  to  the  feoffor.     It  is  not  the  case  of  the  limitation  of  a 


Dec.  1822.]  OF  PENNSYLVANIA.  177 

(Slifer  and  others  v.  Beates  and  another.) 

particular  estate  in  the  use,  and  a  remnant  of  the  old  estate  limited 
to  his  own  right  heirs.  The  seisin  was  not  the  same.  In  fact, 
there  was  no  seisin  in  Thomas:  the  use  to  the  trustees  fell  into  the 
possession.  There  is,  in  contemplation  of  law,  a  distinction  be- 
tween the  legal  fee,  or  possessory  right  of  inheritance,  and  the 
equitable  right  of  inheritance.  A  man  may  make  a  conveyance 
without  parting  with  the  actual  possession :  and  though  the  legal 
right  passes  from  him,  it  will  be  revested  in  him  as  his  old  use. 
But  if  he  part  with  the  legal  fee,  the  law  considers  him  as  having 
another  seisin. 

The  legal  estate  vested  in  the  trustees  :  the  law  does  not  acknow- 
ledge the  trust.  But  chancery  acting  on  the  consciences  of  the 
trustees,  would  compel  them  to  convey  to  the  right  heirs  of  Tho- 
mas: that  is,  persons  answering  that  description  at  his  death,  with- 
out children  living.  From  all  these  considerations,  the  conclusion 
is  manifest,  that  if  a  man  absolutely  part  with  both  the  legal  estate 
and  the  use,  an  estate  afterwards  limited  to  him  or  his  heirs,  must 
necessarily  vest  in  them  by  purchase.  So,  had  he  passed  the  legal 
estate  in  trust  for  himself  or  his  heirs,  such  trust  would  be  a  new 
acquisition.  Watkins  on  Descent,  182.  We  have  seen,  that  the 
statute  could  not  execute  the  use  to  Thomas ;  because  the  whole 
use  was  in  the  trustees.  The  case  of  Fenwick  fy  Mitford,  when 
its  principle  is  fully  considered,  does  not  apply  to  this  conveyance. 
Lord  Coke,  Co.  Lit.  22,  gives  the  reason  of  that  decision  ;"  "  and  all 
this  was  adjudged  in  Femoick  <$•  Mitford.  For  if  the  limitation  had 
been  to  the  use  of  himself  for  life,  and  after  to  the  use  of  another 
in  tail,  and  after  to  the  use  of  his  own  right  heirs,  the  reversion  in 
fee  had  been  in  him ;  because,  the  use  of  the  fee  continued  ever  in 
him,  and  the  statute  doth  execute  the  possession  to  the  use  in  the 
same  plight,  quality  and  degree,  as  the  use  was  limited."  But 
here  the  quality  of  the  estate  was  altered.  The  statute  could  not 
execute  the  possession  to  the  use  in  Thomas,  because  it  was  exe- 
cuted in  the  trustees,  and  there  could  not  be  two  plenary  posses- 
sors.    The  use  was  in  them,  and  the  possession  fell  in  with  the  use, 

A  bargain  and  sale  is  a  real  contract,  whereby  a  person  bargains 
and  sells  his  lands  to  another  for  a  pecuniary  consideration,  in  con- 
sequence of  which,  a  use  arises  to  the  bargainee,  and  the  statute  of 
uses  immediately  transfers  the  legal  estate  and  actual  possession  to 
cestui  que  use,  without  any  entry  or  other  act  on  his  part.  2  Inst. 
672.  What  then  was  the  intention  of  the  trust  ?  No  man  can  read 
the  conveyance  and  doubt  of  the  intention  :  not  a  manifest  implica- 
tion, but  a  positive  declaration  :  a  trust  not  contrary  to  the  policy 
of  the  law.  Here  the  trust  is  co-extensive  with  the  legal  estate  in 
the  land.  It  is  to  be  considered  as  the  real  estate,  and  the  trustee 
the  legal  owner,  as  to  the  cestui  que  trust,  and  all  claiming  under 
them.  Burgess  v.  Wheate,  1  W.  Bl  123.  The  intention  of  the 
parties  to  the  trust  chiefly  governs.     Bac.  on  Uses,  79. 

It  is  a  doctrine  of  the  feudal  tenure,  and  is  founded  on  that  alone, 

VOL.  ix.  Z 


178  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Beates  and  another.) 

that  a  man  cannot  make  his  right  heirs  purchasers.  But  trusts  are 
mere  creatures  of  confidence  between  party  and  party,  and  totally 
distinct  from  the  legal  estates,  -which  are  the  subjects  of  tenure. 
They  are  in  their  nature  independent  of  tenure,  and,  therefore,  not 
the  objects  of  those  laws  which  are  founded  in  the  nature  of  tenure. 
They  are  rights  arising  solely  out  of  the  intent  of  the  party  who 
created  thein,  and,  therefore,  such  intent  can  be  the  only  guide  in 
executing  them.     1  Fearne,  89. 

The  object  of  this  deed  was,  to  protect  Thomas  and  his  children, 
and  those  who,  at  his  death,  answered  the  description  of  his  right 
heirs,  from  any  improvident  disposition  he  might  make.     He  was 
not  intrusted  to  receive  the  rents ;  the  trustees  were  to  pay  them 
personally  over  to  him.     Could  it  be,  that  he  should  retain  the 
power  to  dispose  of  the  estate  in  fee,  on  the  event  of  his  dying 
without  issue  ?     To  prevent  this,  it  was  necessary  that  the  trustees 
should  absorb  the  whole  estate.     These  purposes  could  only  be  an- 
swered by  altering  the  whole  estate.     It  was  not  a  mere  change  of 
it  from  a  legal  to  an  equitable  quality,  leaving  an  undisposed  rem- 
nant with  the  same  estate  and  interest,  exactly  as  the  old  estate, 
and  disposable  by  the  same  means.   For  it  effected  a  radical  change, 
varying  and  restraining  his  disposing  power.     The  approbation  of 
the  trustees,  testified  in  a  very  formal  manner,  was  required  to  any 
disposition  of  the  estate,  of  all,  and  every  part  of  the  estate,  which 
proves  the  intention  in  the  approbation  of  the  trustees.     For  the 
court  will  rather  say,  the  rise  is  not  executed  in   Thomas,  because 
the  approbation  of  the    trustees   is   made  necessary,  than  that  the 
approbation  of  the  trustees  is  not  necssary,  because  it  is  executed 
in  him.     Thomas  meant  that  some  control  should  be  exercised  over 
his  right  to  dispose,  and  that  control  could  be  only  exercised  in  the 
character  of  trustees  ;  and  if  in  the  character  of  trustees,  the  legal 
estate,  co-extensive  with  that  power  of  control,  must  be  vested  in 
the  trustees.     If  there  was  in  this  State  a  Court  of  Chancery,  then 
the  right  heirs  of  Thomas,  provided  he  made  no  valid  disposition 
of  the  estate,  could  have  filed  their  bills,  and  compelled  a  convey- 
ance from  the  trustees ;  and  if  this  had  been  decreed,  the  legal  estate 
would  have  vested  in  them  by  purchase,  and  would  not  follow  the 
old  use,  even   had    such  use  existed  in   the  father.      Watkins  on 
Descent,  133.     The  equitable  action  of  ejectment  is  substituted  for 
the  bill  in  chancery,  and  there  is  a  rule  in  equity,  that  whatever 
ought  to  be  done,  is  considered  as  done.     Where  there  is  no  Court 
of  Chancery  to  compel  it  to  be  done,  the  rule  must  be  adopted  as  a 
universal  maxim,  to  prevent  a  total  failure  of  justice;  and  very 
many  of  the  titles  to  lands  in  Pennsylvania  rest  on  this  principle. 
Indeed,  unless  it  is  received  in  its  full  force,  there  would  be  an  end 
of  all  our  equitable  system,  for  it  is  on  this  fiction  its  whole  foun- 
dation rests.     Even  where  there  is  a  Court  of  Chancery  to  compel 
the  act  to  be  done,  the  court  will  consider  it  in  that  light,  in  favour 
of  all  those  who  have  a  right  to  pray  it  may  be  done.     Thjs  ruje  is, 


Dec.  1822.]  OF  PENNSYLVANIA.  179 

(Slifer  and  others  v.  Beates  and  another.) 

that  as  between  the  parties  who  stipulate  what  is  to  he  done,  or  those 
who  stand  in  their  placet  it  shall  be  considered  as  done.  Burgess 
v.  Wheate,  1  W.  Bl.  123;  This  was  the  opinion  of  Sir  Thomas 
Clarke,  Master  of  the  Rolls,  in  considering  this  very  question.  AH 
the  estate  and  interest  passed  by  the  bargain  and  sale.  The  whole 
estate  was  made  the  subject  of  settlement :  not  particular  estates, 
or  particular  uses.  No  remnant  left  in  Thomas,  to  be  disposed  of 
by  him,  but  all  settled  on  the  trustees.  The  bargainee  took  the 
whole  legal  estate,  and  all  ulterior  uses  operate  as  mere  trusts  in 
equity.  Sugd.  Pou\  326. 

But  this  is  to  be  considered  in  another  point  of  view.  Admit  it 
to  be  a  conveyance  in  fee  to  trustees  in  trust  for  Thomas  and  his 
heirs,  or  the  use  executed  in  the  trustees,  as  bargainees,  and  not  in 
Thomas  by  the  common  law ;  "  provided,  that  it  shall  and  may  be 
lawful  to,  and  for  the  said  Thomas  Fromberger,  with  the  consent 
and  approbation  of  the  said  trustees,  or  the  survivor  of  them,  or 
the  heirs  of  such  survivor,  by  any  deed  under  their  hands  and 
seals,  duly  executed  and  acknowledged,  to  grant  and  convey  all 
and  any  part  of  the  premises  hereby  granted,  unto  such  person,  or 
persons,  and  for  such  uses  and  estates,  as  he,  the  said  Thomas 
Fromberger,  with  such  consent  and  approbation,  as  aforesaid,  may 
direct,  limit  and  appoint."  Is  there  any  rule  of  law  forbidding  this 
restraint  ?  Powers  are  of  two  kinds,  enabling,  and  restraining. 
The  former  is,  where  the  owner  of  an  estate  conveys  it  to  trus- 
tees, reserving  a  power  to  himself  to  revoke,  alter,  enlarge,  or  di- 
minish, the  trusts  declared,  which  power  is  reserved  to  be  exe- 
cuted under  particular  circumstances  only,  and  under  certain  re- 
strictions, and  it  is  called  a  restraining  power,  because  he  who  is 
the  owner  of  the  land,  and  might  alienate  it  by  any  mode  of  legal 
conveyance,  does  by  the  instrument  by  which  he  conveys  his  estate 
to  trustees,  subject  to  such  power,  confine  himself  not  to  alienate 
by  any  other  means,  or  under  any  other  circumstances,  than  those 
which,  by  the  terms  of  the  power  he  prescribes  to  himself.  Powell 
on  Powers,  6.  He  could  restrain  himself,  and  had,  as  owner,  the 
right  to  settle  it  as  he  pleased;  to  order  for  himself.  It  was  no 
matter,  whether  he  had  a  reason  for  making  it  so  or  not,  siet  pro 
ratione  voluntas.  And  when  he  had  done  so,  both  law  and  reason 
bound  him  to  observe  it,  and  no  court  could  avoid  it.  What  was 
said  by  Hale  in  Bath  v.  Montague,  3  Ch.  Cas.  107,  108,  applies  ad 
hominem.  Besides,  as  he  observed,  "  there  might  be  a  very  good 
reason  for  a  man  to  put  such  restraint  upon  himself,  (and  for  a  wise 
man  to  do  so  too :)  for  a  man  might  know  the  frailty  of  his  own 
temper,  how  apt  he  might  be,  to  be  surprised  and  prevailed  on  to 
make  a  precipitate  or  inconvenient  will,  settlement,  or  disposition, 
of  his  estate :  then,  to  restrain  this  inferiority,  which  he  was  con- 
scious of,  and  to  prevent  an  inconveniency  which  might  arise  by 
his  disposing  his  estate  upon  surprise,  he  would  restrain  himself, 
and  settle  his  estate  so  and  so.     If  there  were  a  deliberate  inten- 


180  SUPREME  COURT  [Philadelphia, 

(Slifcr  and  others  v.  Beates  and  another.) 

tion  in  him  to  alter  it,  he  might  solemnly  execute  such  intention ; 
he  might  have  so  many  witnesses,  and  those  of  good  quality,  that 
if  they  found  him  about  any  such  action,  might  advise  him  in  it, 
and  prevent  any  surprise  in  the  doing  of  an  act  that  might  be  fool- 
ish, rash,  and  prejudicial. 

So  conscious  was  Thomas  Fromberger  of  his  infirmities,  that  he 
parted  with  the  legal  fee,  the  possession,  to  the  defendants :  that  he 
reserved  to  himself  a  fair  maintenance ;  and  so  little  did  he  coo- 
fide  in  himself,  that  having  settled  the  whole  e3tate,  he  would  not 
trust  himself  with  any  power  to  alter  that  settlement,  but  with  the 
consent  and  approbation  of  those  whom  he  had  made  the  legal 
owners,  and  that  consent  and  approbation  testified  by  a  very  deli- 
berate act.  The  conveyance  to  the  trustees  was,  with  a  manifest 
and  plain  intention  to  give  them  the  whole  legal  estate,  to  support 
all  the  limitations  and  trusts  in  the  deed  to  Thomas,  maintenance 
out  of  the  rents  during  his  life,  remainder  in  tail  to  his  children,  or 
in  fee,  and  if  he  died  without  children,  or  issue  of  any  children, 
or  any  child,  living  at  his  death,  remainder,  with  a  contingent  or 
shifting  use,  to  his  own  right  heirs.  The  deed  a  mere  conduit — 
the  trustees  were  instruments  in  the  conveyance,  (though  for  the 
purposes  of  upholding  the  trusts,  legal  owners,)  to  conduct  all  the 
dispositions  to  their  final  consummation,  to  preserve  and  lead  them 
along  in  the  course  marked  by  the  deed :  and  equity,  to  whom  the 
cognizance  of  trusts  exclusively  belongs,  will  never  suffer  a  change 
of  the  trusts,  where  the  legal  estate  is  conferred  on  the  trustees. 
Hopkins  v.  Hopkins,  1  Jltk.  58 1 . 

The  smallness  of  the  consideration,  as  to  vesting  the  whole  use 
in  the  trustees,  can  form  no  objection.  For  any  consideration,  if  it 
be  the  most  trifling,  will  serve  to  raise  a  use  on  a  bargain  and  sale : 
as  five  shillings,  2  Roll.  Ab.  737,  788  ;  or  the  reservation  of  twelve 
pence,  10  Co.  84,  A.,  or  a  pepper  corn,  1  Mod.  262  ;  2  Mod.  252,  are 
good  considerations  to  support  a  use  on  this  conveyance.  Still,  how- 
ever, if  the  consideration  be  merely  nominal,  and  a  part  of  the  use 
only  be  limited  away,  there  would  be  a  trust  a3  to  the  undisposed 
part.  But  here  the  estate-  is  conveyed  to  the  trustees,  to  hold  to 
them  and  their  heirs.  It  is  a  settlement  of  the  whole  estate,  in  trust, 
which  in  default  of  appointment,  is  to  pass  to  the  right  heirs  of 
Thomas,  not  by  way  of  use,  nor  as  the  reversion  or  reservation  of 
the  old  estate  by  the  common  law,  but  by  conveyance  from  the 
trustees.  Without  such  conveyance,  no  ejectment  could  be  sup- 
ported in  England.  This  clearly  shows,  the  heirs  take  it  not  as 
part  of  the  old  estate  undisposed  of,  but  a  new  estate :  for  if  they 
take  it  as  such,  they  required  no  conveyance  from  the  trustees.  It 
descended  to  them  as  the  legal  estate,  by  the  common  law.  It  fol- 
lows, from  this  view  of  the  subject,  that  Thomas  Fromberger 
could  not  change  the  trust,  unless  in  the  way  prescribed  by  him- 
self. This  was  a  law  he  had  put  upon  himself,  from  which  a  court 
of  law  could  not  release  him,  and  this  legal  obligation  would  be 


Dec.  1822.]  OF  PENNSYLVANIA.  181 

(Slifer  and  others  v.  Scales  and  another. 

equally  binding  in  equity,  because  done  by  his  own  consent.  I 
have  been  more  tedious  than  I  intended,  and  have  consumed  so 
much  time  in  the  first  inquiry,  which  with  us,  is  a  question  of 
some  novelty,  that  I  must  hasten  over  the  remaining  questions, 
which  are  of  less  general  importance,  and  certainly  of  less  diffi- 
culty. 

It  is  conceded,  that  if  the  power  be   defectively  executed,  the 
parties  being  all  volunteers,  and  standing  in  equal  equity,- chancery 
could  grant  no  relief,  nor  remedy  the  defect.     Nor  does  it  make 
any  difference,  whether  it  is  a  restraint  by  the  owner,  on  his  own 
right,  or  a  power  to  be  executed  by  him  on  the  property  of  others. 
The  owner  is  his  own  legislator.    He  may  impose  on  himself  what 
terms  he  pleases.     The  province  of  the  judge  is,  not  to  inquire 
whether  the  circumstances  required  are  important  or  insignificant, 
essential  or  ceremonial,  reasonable  or  unreasonable,  but  what  they 
are.     Whatever  disposition   Thomas  Fr&mberger  is  empowered  to 
make,  whether  by  deed,  will,  or  other  writing,  must  be  with  the 
consent  and  approbation  of  the  trustees,  or  the  survivor  of  them,  or 
the  heirs  of  such  survivor,  by  some  deed,  under  their  hands   and 
seals,  duly  executed  and  acknowledged,  and  with  such  consent  and 
approbation,  he  is  empowered  to  grant  and  convey  all  or  any  part 
of  the  premises  for  such  uses  and  estates,  as  he,  with  such  consent, 
may  limit  and  appoint.  Where  forms  are  imposed  on  the  execution 
of  a  power,  the  circumstances  must  be  strictly  adhered  to :  and 
where  a  man  imposes  them  on  himself,  the  court  cannot  dispense 
with  the  forms  and  solemnities  he  has  required.     To  do  so,  would 
be  to  deprive  a  man  of  the  bridle  he  has  thought  proper  to  impose 
on  his  weakness  or  frailty  of  mind,  to  take  from  his  friends  the 
reins  he  has  put  into  their  hands,  to  restrain  him  in  his  moments  of 
intemperance,  folly,  and  thoughtfulness,  from  making  beggars  of 
his  children,  and  stripping  his  heirs  of  that  which  came  to  him  from 
their  common  ancestor.  The  circumstances  may  be  perfectly  arbi- 
trary, unessential  in  point  of  effect,  to  the  validity  of  the  instrument 
by  which  the  power  may  be  exercised  :  but  being  required   by 
the  creator  of  the  power,  they  can  only  be  satisfied  by  a  strictly 
literal  and  precise  performance,  and  without   recapitulating   the 
cases  in  which  it  has  been  decided,  there  must  be  this  literal  ad- 
herence, it  may  be  said,  that  in  every  case  the  ingenuity  of  man  can 
devise,  the  terms  of  the  power  must  be  strictly  complied  with. 
Sugderi's  Powers,  211,  213.     The  material   construction  is,- that 
the  instrument  of  grant  and  conveyance  should  be  by  deed,  and 
the  contemporaneous  and  joint  act,  both  of  Thomas  and  the   trus- 
tees.-    Their  bands  and  seals,  can  refer  only  to  a  joint  execution  by 
all.     The  proviso  cannot  in  any  other  way  be  rendered  sensible  in 
all  its  parts.     For  if,  as  to  the  deed,  Thomas  is  not  comprehended, 
and  one  of  the  trustees  had  died,  it  could  not  be  executed  by  deed 
under  their  hands  and  seals.     By  the  death  of  one  the  power  would 
be  extinct.     When  it  is  expressly  declared,  that  the  consent  and 


182  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Beates  and  another.) 

approbation  of  the  survrivor  would  be  sufficient,  to  be  under  their 
hands  and  seals,  in  that  case,  can  mean  nothing  else  than  the  hands 

7  7  £5 

and  seals  of  the  grantor  and  trustees,  if  both  be  living;  if  one  be  dead, 
then  under  the  hands  and  seals  of  the  grantor  and  the  survivor. 
Besides,  if  executed  by  will,  which  is  in  its  nature  revocable,  with 
the  consent  and  approbation  of  the  trustees  by  deed,  the  power 
would  be  completely  executed,  and  at  an  end,  there  being  no  power 
of  revocation  in  the  deed.  For  a  person  only  having  an  authority 
cannot  annex  a  power  of  revocation  when  he  executes  it,  Vern. 
355.  An  authority  once  well  executed,  cannot  be  executed  again. 
5  Mod.  437.  For  where  the  power  is  executed  by  deed,  unless  a 
power  of  revocation  be  reserved  in  the  deed,  the  appointment  can- 
not be  revoked.  No  not  even  if  the  original  power  expressly  au- 
thorized the  donee  in  the  most  unlimited  terms  to  appoint  and  re- 
voke the  appointment  from  time  to  time.  For  the  law  will  not 
endure  a  prospective  power  like  this,  but  on  every  execution  a 
new  power  must  be  reserved.  2  Freem.  61.  Hele  v.  Bond,  Prec. 
Ch.  474.  A  power  executed  by  the  trustees'  approbation  by  deed, 
could  not  be  revoked,  and  if,  as  here,  it  was  coupled  with  an  in- 
terest, it  could  not  be  revoked,  unless  it  contained  a  clause  of  re- 
vocation. The  will  in  its  nature  revocable,  would  thus  be  ren- 
dered irrevocable.  But  if  the  construction  be  doubtful,  there  are 
other  objections  to  the  execution  of  the  power,  insurmountable  ob- 
jections. For  if  Thomas  Fromberger  could  execute  the  power  by 
will,  still,  as  to  the  new  uses  the  consent  of  the  trustees  by  deed 
executed  and  acknowledged  by  them  is  required,  and  this  should 
be  previous  to  or  concomitant  with  the  will.  But  it  is  quite  clear, 
that  the  deed  testifying  the  consent  and  approbation  of  the  trustees, 
must  be  at  least  executed  in  the  life  time  of  Thomas  Fromberger. 
The  estate  must  vest  according  to  the  new  uses,  eo  instanti  Thomas 
died,  or  would  go  according  to  the  old  trusts.  The  deed  giving 
consent  and  approbation  must  be  executed  in  his  life  time,  if  not 
acknowledged.  No  subsequent  ratification  could,  by  relation,  va- 
lidate the  appointment.  The  deed  executed  after  the  death  of  the 
appointee,  which  was  made  essential  to  the  execution  of  the  power, 
would  form  no  part  of  its  execution.  That  act  could  not  be  said  to 
be  done  with  the  approbation  by  deed  of  the  trustees,  when  the 
actor  was  dead  before  its  execution,  it  could  have  no  ex  post  facto 
operation.  If  subsequent  ratification  would  validate  the  will,  it 
might  as  well  be  done  at  the  end  of  twenty  years,  as  twenty  days, 
and  the  estate  continue  in  abeyance,  which  the  law  will  not  suffer. 
The  appointment  was,  therefore,  defective,  and  Thomas  having  no 
other  right  of  disposition  than  the  power  he  had  reserved,  and  that 
not  being  conformed  to,  it  is  as  if  he  did  it  without  power. 

In  our  last  inquiry,  the  difficulty  arises  from  the  want  of  adequate 
chancery  powers,  and  this  court  have,  on  various  occasions,  been 
distressed  in  the  distribution  of  the  wife's  real  estate,  converted  by 
the  act  of  the  law,  into  personal.  For  if  the  husbands  of  these 
two  feme  coverts  who  have  brought  this  action,  came  into  a  Court 


Dec.  1S22.]  OF  PENNSYLVANIA.  183 

(Slifer  and  others  v.  Beates  and  another.) 

of  Chancery  against  the  trustees,  for  the  trust  money  arising  from 
the  sale  under  the  decree  of  the  Orphans'  Court,  that  court,  where 
there  was  such,  would  be  the  only  tribunal. 

Here  there  is  no  such  authority  exercised  by  the  court.  Chan- 
cery woul  1  compel  a  reasonable  settlement  on  the  wives.  But  that 
would  be  no  reason  why  the  trustees  should  retain  the  money  or 
pay  it  over  to  the  devisee  of  Thomas.  For  our  administration  of 
justice  is  not  so  very  defective,  that  the  money  arising  from  the  sale 
of  real  estate,  settled  by  deed  of  trust,  but  changed  into  personal, 
by  the  decree  of  a  court  of  competent  jurisdiction,  should  remain 
without  an  owner,  and  become  an  escheat  in  the  hands  of  the  trus- 
tees. The  trustees  were  the  only  hands  who  could  receive  the 
money  on  the  sale.  They  have  considered  it,  and  now  consider  it 
as  trust  money.  There  is  no  difficulty  in  following  it,  and  the 
court  are  of  opinion,  that  the  present  plaintiffs,  the  husbands  suing 
jointly  with  their  wives,  are  entitled  to  this  trust  money.  It  is 
impossible  to  distinguish  the  case  from  Barnet  v.  Yoke.  Both 
cases  were  under  the  same  system.  There,  as  here,  had  the  estate 
remained  in  land,  as  it  was  the  inheritance  of  the  wife,  the  husband 
would  be  only  entitled  to  a  life  estate.  But  the  law  having  changed 
its  character,  she  took ;  consequently,  her  husband  took  it  in  the 
character  of  money.  The  husbands  would  not  have  taken  it  as  per- 
sonal estate,  if  the  wives  had  died  before  the  sale.  For  at  most, 
they  would  only  take,  as  tenants  by  the  courtesy,  a  life  estate,  the 
interest  of  the  money  during  life,  and  the  principal  would  have 
gone  to  the  heirs  of  the  wives,  and  not  to  their  personal  representa- 
tives. For  where  lands  have  been  directed  by  order  of  the  Or- 
phans' Court  to  be  sold  for  payment  of  debts,  the  widow  would  not 
be  entitled  to  a  third  of  the  surplus  absolutely,  but  the  interest  of  a 
third  during  life.  Diller  v.  Diffedoffers')  Executors,  2  Yeates, 
261.  Yet  the  husband,  it  being  personal  estate  in  the  wife's  life 
time,  would  take  it  as  personal  estate.  So,  if  the  estate  which 
the  wives  inherited  from  the  father,  had  been  sold  for  payment  of 
his  debts,  either  by  the  sheriff,  or  by  order  of  the  Orphans^  Court, 
in  their  life  times,  the  surplus  money  would  be  the  husbands.  So 
here,  if  Thomas's  inheritance  had  been  sold  for  payment  of  his 
antecedent  debts,  the  money  would  come  into  the  hands  of  the 
trustee,  subject  to  the  same  trusts  as  the  land  was.  The  surplus 
of  a  real  estate  in  trust,  sold  by  a  decree  in  Chancery,  for  pay- 
ment of  debts,  or  any  other  purpose  of  the  trust,  like  the  rents  and 
profits,  is  disposed  of  as  the  original  trust.  It  is  part  of  the  an- 
cient trust.  Wyth  v.  Blackman,  1  Ves.  197.  An  executor, 
who  receives  the  surplus  proceeds  of  land  sold  on  an  execution,  is 
chargeable  with  them  in  account  as  executor,  notwithstanding 
he  is  husband  of  the  devisee,  and  claims  to  have  received  in  that 
character  ;  because  it  cannot  be  easily,  known  what  debts  against 
the  testator  remains  unpaid ;  and  if  paid  over  to  the  heir  or  devi- 
see, and  then  if  other  debts  appeared,  there  would  be  a  necessity 


184  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Bcates  and  another.) 

for  new  suits  and  executions  for  the  purpose  of  selling  other  lands, 
by  which  the  estate  would  be  subject  to  heavy  costs.  But  if  there 
are  no  debts  to  pay,  or  the  executor  be  insolvent,  the  court  will 
order  the  surplus  to  be  paid  to  the  heir  or  devisee.  Guier,  Exe- 
cutor of  Cooper  v.  Kelly  and  wife,  2  Binn.  298. 

On  a  very  perplexed  settlement,  on  which  a  question  arose,  how 
money  was  to  be  treated,   whether  as  money  or  real   estate,  the 
Chancellor  said,  that  it  was  a  very  particular  case,  and  an  extraor- 
dinary limitation  and  disposition  of  real  estate  ;  but  the  court  must 
make  such  construction  as  appears  agreeable  to  the  intention  of  the 
donor  and  creator  of  the  trust ;  and  whatever  doubts  there  might  be 
in  the  case,  whether  to  be  taken  as  real  or  personal  estate,  yet  as  all 
parties  submit  to  have  it  considered  as  personal  estate,  not  of  the 
original  donor,  but  of  the  parties,  who  take  it  under  him,  they  may 
so  take.     And  where  money  would  in  chancery  be  considered  as 
land,  and  where  there  is  no  tenant  in  tail,  a  person  sui  juris  may 
come  into  court,  and  have  it  decreed  as  money.     But  in  case  of  a 
feme  covert,  it  shall  be  laid  out  in  land,  unless  some  other  act  was 
done  by  her  analogous  to  a  fine  at  common  law,  by  her  coming  into 
court  to  be  separately  examined,  and  then  if  she  declared  her  as- 
sent to  have  it  money,  without  the  influence  of  her  husband,  the 
court  would   so   decree   it.      Cunningham  v.  Moody,  1    Vez.   176, 
and    Trafford  v.  Boehm,    3    Atk.  440.        In  the    last  case,  Lord 
Hardwicke  observed,  that  if  the  parties  interested,  agreed  that  the 
money  should  not  be  of  the  quality  of  land,  then  it  was  discharged 
of   that  quality.       So  far  as  [respects  the    house  in  Fromberger's 
Court,  the  trustees  have  done  exactly  what  a  Court  of  Chancery 
would  have  directed  to  be  done,  invested  the  money  in  real  estate, 
declaring  the  purchase  to  be  with  trust  money  for  the  same  uses 
and  trusts  as  were  declared  by  the  original  conveyance  and  settle- 
ment.    Trust  money  may  be  followed  into  land.     Here,  the  house, 
a  part  of  the  estate  conveyed  to  trustees,  was  restored  to  them  in 
the  character  of  trustees,  in  its  original  condition,  and  reinvested  in 
them  as  their  old  estate.     The  court  are  of  opinion,  that  the  plain- 
tiffs  are  entitled  to  a  portion  of  the  house  and  lot  in  Fromberger'  s 
Court,  and  to  a  portion  of  the  personal  estate,  and  that  judgment  be 
entered  for  them ;  the  terms  to  be  settled  by  the  attorneys  of  the 
parties.     So  far  as  relates  to  these  claimants,  it  matters  not,  whether 
the   money  be  considered   and  treated  as   real  or  personal   estate. 
The  remote  possibility  of  the  sisters  dying  without  issue,  and  with- 
out disposing  of  it,  is  of  no  weight. 

On  the  first  inquiry,  I  will  add  one  further  observation.  If  all 
the  uses  were  executed  in  Thomas,  then  he  would  be  tenant  in 
tail,  with  reversion  to  himself  in  fee,  and  all  his  estate  would  be  of 
the  same  nature,  and  might  defeat  the  whole  settlement.  For  if 
a  person  is  tenant  in  tail,  reversion  in  fee  to  himself,  by  a  com- 
mon conveyance,  he  may  bar  the  entail  and  reversion.  So  that  this 
forms  an  additional  reason  for  the  construction  I  have  given  to  this 


Ike.  1822.]  OF  PENNSYLVANIA.  185 

(Slifer  and  others  v.  Beates  and  another.) 

conveyance.  See  Trafford  v.  Bcehm,  3  Jltk.  447.  And  if  the 
trust  to  the  children  was  construed  a  use  in  fee,  subject  to  a  secon- 
dary, a  springing  use,  on  an  event  seasonably  determinable,  viz  :  the 
death  of  Thomas  without  leaving  children  or  issue  living-  at  his 
death  ;  then  the  right  heirs  of  Thomas  would  not  inherit  by  the 
common  law,  and  they  could  not  take  by  a  shifting  in  futuro  use, 
if  the  children  of  Thomas  would  have  taken  in  fee  simple  ;  for  no 
such  use  could  be  limited  on  a  bargain  and  sale.  For  this  use  cannot 
arise  out  of  the  estate  of  the  bargainees,  they  being  merely  cestuis 
que  use,  nor  can  arise  out  of  the  original  seisin  of  the  bargainor. 
For,  after  the  bargain  and  sale,  there  could  be  no  possibility  of  sei- 
sin, remaining  in  him.  Sanders,  U.  §-  T.  155.  And  when  a  use 
is  spoken  of  as  arising  out  of  the  estate  of  the  bargainor,  it  is  where 
the  bargainor  has  not  parted  with  the  fee,  but  only  granted  an  estate 
for  life.  But  where  the  bargain  and  sale  is  to  the  bargainee  in  fee, 
the  use  in  the  fee  is  executed  in  him,  and  as  there  can  be  no  express 
use  to  the  bargainee,  so  there  can  be  no  resulting  use,  or  use  by  im- 
plication, as  there  is  on  feoffment. 

The  distinction  is  very  evident.  For  if  a  man  bargains  and  sells 
to  one  for  life,  remainder  to  the  first  son  of  the  bargainee,  (which 
first  son  is  unborn  at  the  time  of  the  conveyance,)  this  is  a  good  limi- 
tation of  the  use  to  the  first  son,  to  take  effect  out  of  the  estate  of  the 
bargainor.  For  in  this  case  the  possession  of  the  bargainor  was  only 
executed  in  the  bargainee  for  life  ;  so  that  the  reversion  in  fee  re- 
mained in  him,  out  of  which,  he  might  limit  the  uses  to  the  first  son 
of  the  bargainee  :  the  consideration  by  the  bargainee,  might  well  ex- 
tend to  the  uses  limited  to  his  son.     Sanders,  U.  fy  T.  324. 

Whenever  a  declaration  of  uses  is  mentioned,  it  must  be  under- 
stood of  such  conveyances  as  operate  by  transmutation  of  possession. 
For  from  the  nature  of  a  bargain  and  sale  in  fee,  there  can  be  no 
further  uses  declared.  For  if,  after  the  statute  of  uses,  by  deed  of 
bargain  and  sale,  one  bargain  and  sell  his  lands  to  another  in  fee, 
for  the  use  of  the  bargainee  for  life,  or  in  fee,  to  the  use  of  a  stran- 
ger, such  use  limited  over,  would  be  void  :  because  the  nature  of 
the  transaction  and  price  paid,  implied  therein  a  use  to  the  vendee, 
viz  :  the  first  cestui  que  use,  and,  therefore,  the  limitation  to  the  use 
of  another,  was  repugnant ;  for  thereby  the  use  in  fee,  which  was  in 
the  bargainee  in  respect  of  the  consideration,  would  be  taken  out  of 
him,  and  carried  over  to  another  without  consideration.  It,  therefore, 
became  a  maxim  of  law,  that  a  use  or  trust  could  not  be  limited  out 
of  a  use  or  trust,  before  limited.  Courts  of  law  have  steadily  ad- 
hered to  this  maxim:  and  courts  of  equity  seized  with  greediness  this 
opportunity  to  re-establish  their  jurisdiction  over  property,  by  giving 
effect  to  these  uses  or  trusts,  as  affecting  the  conscience,  and  so  the 
proper  subject  of  jurisdiction  of  courts  of  equity.  Therefore,  where- 
ever  a  use  or  trust  arises  out  of  land,  there  the  use  will  be  executed 
by  the  statute,  and  the  legal  estate  vested ;  but  where  the  use  arises 

vol. ix.  2  A 


186  SUPREME  COURT  [Philadelphia, 

(Slifer  and  others  v.  Bcates  and  another.) 
out  of  a  preceding-  use,  which  arises  out  of  land,  there  the  statute 
will  not  attach,  and  the  use  is  retained  by  equity  only  under  the  de- 
nomination of  a  trust.  PoweWs  Devises,  288.  The  remainder  to 
the  right  heirs  of  Thomas,  gave  them  only  an  equitable  estate,  an 
equitable  remainder,  in  which  those  persons  who  at  his  death,  should 
come  within  the  description  of  right  heirs,  would  take,  and  the  estate 
executed  in  the  trustees  would  support  this  remainder.  All  subse- 
quent limitations  were  trust  estates. 

If  the  last  limitation  to  the  right  heirs  had  been  a  legal  one,  the 
heirs  must  have  been  in  by  descent.  But  being  a  contingent  equita- 
ble remainder,  they  took  as  purchasers,  answering  the  description 

of  right  heirs. 

Judgment  for  the  plaintiffs. 


[Philadelphia,  Jan.  6,  1823.J 

In  the  case  of  RICHARD  NEAVE'S  Estate. 


APPEAL. 


Oue  dc?ised  the  residue  of  iiis  real  and  personal  estate  after  payment  of  his  debts, 
to  the  discretion  of  his  executors  to  distribute  in  such  manner  as  they  might  think 
proper,  and  appointed  three  executors,  all  of  whom  died  indebted  to  the  estate 
without  making  any  distribution.  Held,  that  the  Register's  Court  might,  in  it» 
discretion  appoint  the  son  of  the  surviving  executor,  who  was  administrator  to 
his  father,  administrator  cum  testamento  annexo,  he  being  of  fair  character,  and 
having  given  good  security,  and  no  claim  being  made  by  any  next  of  kin,  nor  op- 
position by  the  commonwealth  under  a  claim  by  escheat,  nor  by  creditors. 

This  was  an  appeal  by  Alexander  Stewart,  from  the  decree  of  the 
Register's  Court  of  the  county  of  Philadelphia,  committing  the  ad- 
ministration cum  testamento  annexo  of  Richard  Neave's  estate,  to 
Samuel  Smith. 

Eiving,  for  the  appellant,  stated,  that  Richard  Neave  died  in 
Philadelphia,  in  the  year  1 809,  and  his  will  was  proved  on  tho 
4th  March,  1809.  He  left  three  executors,  namely,  Robret  Car- 
rie, Francis  MShane,  and  Dr.  William  Smith,  who  took  upon 
themselves  the  administration  of  the  effects,  and  are  since  dead. 
M'Sha?ie  settled  an  account  in  the  Register's  office  on  the  26th 
February,  1810,  having  filed  a  declaration  on  the  24th  same 
month,  that  the  balance  in  his  hands  was  3287  dollars  and  72  cents, 
Corrie  died  after  him,  namely,  in  May,  1821,  having  settled  his 
account  in  the  same  office,  acknowledging  a  balance  in  his  hands 
of  2322  dollars  and  73  cents.  Smith  settled  no  account,  but  filed 
a  declaration  on  the  23d  February,  1810,  that  he  was  accountable 
for  994  dollars,  included  in  the  inventory  of  R.  Neave's  estate.  He 
died  in  May,  1822,  being  the  surviving  executor,  intestate.  Ad- 
ministration of  hTs  estate  was  committed  to  Samuel  Smith,  his 
eldest  son.     Alexander  Stewart,  the  appellant,  applied  for  the  ad- 


Bee.  1822.]  OF  PENNSYLVANIA.  187 

(In  the  case  of  Neave's  estate.) 

ministration  of  R.  Neave's  estate,  on  the  ground  of  being  a  credi- 
tor of  Richard  Neave.  Stewart  had  a  claim  on  Neave's  estate  for 
an  indemnity  against  expenses  to  which  he  had  been  put  in  reco- 
vering a  tract  of  land  sold  to  him  by  Neave,  for  which  Neave  had 
contracted  with  one  Richardson.  Dr.  Smith's  children  claim  Neave's 
estate  under  his  will,  but  W3  say  that  they  have  no  beneficial  inte- 
rest, but  take  as  trustees. 

Neave,  by  his  will,  devised  all  his  estate  real  and  personal  to  his 
executors  and  their  heirs,  directed  the  manner  of  paying  his  debts, 
and  then  gave  "  the  residue,  if  any,  to  the  discretion  of  his  execu- 
tors, to  distribute  in  such  manner  as  they  may  think  proper."  This 
residue,  therefore,  was  to  be  distributed  by  the  executors,  and  as 
they  have  all  died  without  executing  the  trust,  the  distribution 
must  be  made  by  others.  A  devise  of  copyhold  to  testator's  wife 
in  fee,  "  not  doubting  but  that  my  wife  will  dispose  of  the  same  to 
and  among  my  children  as  she  shall  please,"  is  a  trust  for  such 
children  as  she  shall  appoint.     Massey  v.  Sherman,  Amb.  520. 

So  where  one  by  will  gave  annuities,  and  directed  the  residue 
of  her  estate  to  be  disposed  of  in  charity,  to  such  persons  and  in 
such  manner  as  her  executors,  or  the  survivors  of  them  should  ap- 
point, it  was  held  a  trust  confined  to  the  executors  personally,  and 
that  it  could  not  be  exercised  by  other  trustees,  added  by  the  Court 
of  Chancery  to  sustain  the  annuities.  Amb.  309.  If  this  residue  be 
considered  as  an  undisposed  of  surplus,  it  goes  to  the  next  of  kin. 
Act  of  1th  April,  1807,  sect.  11,  Purd.  Dig.  650.  Wilson  v.  Wilson, 
3  Binn.  557.  If  the  executors  had  no  beneficial  interest,  the  admi- 
nistrator of  the  surviving  executor  is  an  improper  person  to  have 
the  administration,  because  his  intestate  has  not  settled  his  account 
of  Neave's  estate.  It  ought  to  be  given  to  some  other  person,  who 
would  call  him  to  account.  As  we  do  not  insist  that  R.  Stewart 
shall  be  appointed,  as  it  does  not  appear  that  he  is  a  creditor,  but 
that  S.  Smith  shall  not :  and  on  this  appeal  the  only  question  is,  as 
to  the  appointment  of  the  latter. 

Chauncey  and  /.  Sergeant,  contra.  There  were  applications  in 
Huntington  and  Bedford  counties  for  the  administration  on  R. 
Neave's  estate.  The  Register  of  Philadelphia,  without  notice  to 
any  person,  had  determined  to  grant  letters  to  Mr.  MKnight  and 
Mr.  Stewart ;  but  before  the  letters  issued,  a  caveat  was  entered, 
in  consequence  of  which,  by  an  old  act  of  assembly,  June  7th, 
1812,  Purd.  Big.  573  note,  the  matter  was  carried  at  once  to 
the  Register's  Court.  Stewart  and  M'Knight  swore,  that  they 
were  creditors.  MKnight  afterwards  relinquished  his  applica- 
tion, and  Stewart  did  not  prove  he  was  a  creditor.  Robert  Stew- 
art, the  father  of  Alexander,  claimed  4  or  5000  dollars  from 
R.  Neave's  estate,  for  indemnification  of  expenses  at  law  concern- 
ing land  he  had  bought  of  A'.  Neave.  He  had  agreed  to  give  up- 
wards of  500  pounds  for  the  land,  of  which  he  had  paid  only  fifty 
pounds :  so  that  he  wanted  his  lands  for  almost  nothing,  and  a  large 


188  SUPREME  COURT  [Philadelphia, 

(In  tho  ease  of  Ncave's  Estate.) 

sum  besides.  His  son  was  certainly  a  very  improper  person  for 
administrator.  We  have  his  bond  and  mortgage  for  the  purchase 
money,  of  which  only  50  pounds  have  been  paid.  A  creditor  is  not 
on  the  footing  of  the  next  of  kin  as  to  the  administration.  The 
next  of  kin  has  a  right  to  the  administration  :  but  the  creditor  has 
not. 

We  contend,  that  this  residue  vested  beneficially  in  the  execu- 
tors, and  as  such  passed  to  the  survivor.  It  is  an  unlimited  power  : 
no  objects  of  distribution  are  named :  the  executors  might  if  they 
pleased  distribute  among  themselves.  A  devise  of  land  to  one  to 
dispose  of  at  his  will  and  pleasure  is  a  fee.  Com.  Dig.  Devises, 
JVo.  4.  A  bequest  for  such  purposes  as  executors  shall,  in  their 
discretion,  think  proper,  does  not  exclude  the  executors.  2  Madd. 
86.  There  certainlv  is  no  trust  for  the  next  of  kin :  the  whole  es- 
tate  is  given  to  the  executors,  for  the  sole  purpose  of  paying  debts : 
and  the  legal  estate  is  in  the  heirs  of  the  surviving  executor,  Dr. 
Smith.  We  know  of  no  kindred  of  R.  Neave,  and  if  there  are  any, 
none  have  appeared.  If  it  be  supposed  that  there  is  an  interest  in 
the  commonwealth  by  escheat,  yet  the  commonwealth  makes  no 
objection.  But  there  can  be  no  escheat  where  there  are  executors. 
The  act  regulating  escheats  applies  only  to  the  case  of  the  parties 
dying  intestate.  The  act  of  7th  April,  1807,  Purd.  Dig.  650,  does  not 
apply  to  this  case,  because  the  residue  is  here  disposed  of  by  will. 
Then  the  rule  is  well  settled,  that  administration,  generally  speak- 
ing, shall  be  granted  to  the  residuary  legatee,  and  to  the  executor 
or  administrator  of  the  residuary  legatee,  even  against  creditors  or 
next  of  kin.  Toller,  98,  99,  117.  «S'.  Smith,  to  whom  administra- 
tion is  granted,  is  a  man  of  unexceptionable  character,  and  has 
given  good  security  in  the  sum  of  4000  dollars.  He  is  one  of  four 
children  left  by  Dr.  Smith.  All  those  who  are  interested  in  Cor- 
rie's  estate,  and  in  Dr.  Smith's  estate,  requested  that  the  adminis- 
tration might  be  granted  to  S.  Smith.  He  was  within  the  scope  of 
the  Register's  discretion,  and  this  court  will  not  set  him  aside,  un- 
less it  is  shown  that  he  is  unfit. 

Tod,  in  reply.  The  single  question  is  whether  S.  Smith  ought 
to  be  the  administrator.  It  is  a  strong  objection  to  him,  that  as  his 
father's  administrator,  he  is  indebted  to  R.  A1  cave's  estate.  The  ac- 
counts of  the  estate  have  not  been  settled  :  he  has  in  his  hands  all 
the  documents  and  papers  necessary  to  effect  a  settlement :  and  he 
ought  not  to  have  the  business  entirely  in  his  own  hands,  but  power 
should  be  granted  to  some  other,  to  call  the  executors  of  all  the  re- 
presentatives to  account.  There  can  be  no  doubt  that  the  testator 
meant  that  the  executors  should  take  in  trust.  They  are  to  take  for 
the  purpose  of  distribution  :  they  might  have  a  discretion  as  to  the 
mode  of  distribution,  but  not  whether  or  not  they  would  distribute 
at  all.  The  word  distribution,  signifies  in  law,  an  appointment 
among  the  next  of  kin.  The  executor  had  no  idea  of  a  beneficial 
interest.     Corrie  by  his  will  orders  the  balance  in  his  hands  to  be 


Dec.  1822.]  OF  PENNSYLVANIA.  189 

(In  the  case  of  Neave's  Estate.) 

paid  to  the  estate.  If  there  are  no  next  of  kin,  the  commonwealth 
takes  by  escheat ;  for  though  there  are  executors,  they  may  be  trus- 
tees for  the  commonwealth.  If  there  are  no  next  of  kin,  R. 
JYeave  died  intestate  as  to  the  residue.  An  administrator  of  an 
executor  is  not  entitled  to  adminstration  to  the  testator.(a) 

The  opinion  of  the  court  was  delivered  by 

Tilghmaist,  C.  J.  Richard  JVeave  died  in  the  year  1809,  in  the 
county  of  Philadelphia,  having  made  his  last  will  and  testament 
in  writing,  and  appointed  Robert  Carrie,  Francis  JW  Shane  and 
William  Smith,  the  executors  of  his  said  will.  The  will  was 
proved  on  the  4th  March,  1809.  The  executors,  of  whom  Smith 
was  the  survivor,  are  all  dead ;  and  although  their  accounts  have 
not  been  finally  settled,  yet  it  appears  from  the  papers  filed  in  the 
office  of  the  Register  of  wills,  that  there  is  a  balance  due  from 
each  of  them  to  the  estate  of  the  testator.  It  does  not  appear,  that 
JVeave  left  any  kin.  Upon  the  death  of  William  Smith,  the  sur- 
viving executor,  who  died  intestate,  his  son  Samuel  Smith,  (his  ad- 
ministrator) applied  for  letters  of  administration  on  the  estate  of 
JYeave,  (with  the  will  annexed.)  Application  was  also  made  by 
Alexander  Stewart,  the  appellant,  upon  the  ground  of  his  being  a 
creditor  of  JVeave.  The  Register's  Court,  having  heard  the  par- 
ties granted  the  administration  to  Samuel  Smith,  whereupon  Steiuart 
entered  an  appeal. 

It  does  not  appear,  that  Stewart  was  a  creditor,  so  that  he  has 
no  pretence  to  the  administration.  That  is  conceded  by  his  counsel ; 
but  they  contend,  that  letters  ought  not  to  have  been  granted  to 
Samuel  Sjnith,  and  therefore  this  court  should  revoke  them.  The 
reason  they  assign,  is,  that  the  executors  of  JVeave  took  his  estate 
in  trust,  and  not  for  their  own  benefit,  and  therefore  the  son  of  the 
surviving  executor  had  no  right  to  the  administration,  and  ought 
not  to  have  it,  because  the  estate  of  his  father  is  debtor  to  the  es- 
tate of  JVeave,  and  the  administration  would  be  more  properly  grant- 
ed to  another,  who  might  call  the  representatives  of  all  the  exe- 
cutors to  an  account.  JVeave  died  seised,  and  possessed,  of  a  con- 
siderable estate,  both  real  and  personal,  and  it  is  supposed  that 
he  was  indebted  both  here,  and  in  England  where  he  formerly  re- 
sided. He  devised  all  his  estate,  both  real  and  personal,  to  his  ex- 
ecutors and  their  heirs,  gave  directions  as  to  the  manner  of  pay- 
ing his  debts,  and  then  gave  "  the  residue,  if  any,  to  the  discre- 
tion of  his  executors,  to  distribute  in  such  manner  as  they  may  think 
proper."  These  are  the  words  of  the  will.  It  has  been  argued 
with  great  force  as  well  as  ingenuity,  by  the  counsel  of  Samuel 
Smith,  that  the  executors  of  JVeave  took  the  residue  of  his  estate, 
not  in  trust,  but  for  their  own  benefit.     It  is  unnecessary  to  decide 


(a)  See  the  case  of  Gibbs  v.  Ramsey,  2  Ves.  and  Beames,  294  :  which  is  strong  in 
favour  of  this  being  for  the  benefit  of  the  executors  themselves.     Rep. 


190  SUPREME  COURT  [Philadelphia 

(In  the  case  of  Neave's  Estate.) 

that  point  at  present ;  and  J  will  only  remark,  that  there  will  be 
considerable  difficulty  in  establishing  a  trust,  where  the  testator  has 
not  expressly  said  that  a  trust  was  intended,  where  the  object  of  the 
supposed  trust  is  so  undefined,  and  the  power  of  distribution  vested 
in  the  executors,  is  so  unlimited.  It  cannot  be  said,  that  any  person 
has  a  right  to  the  administration  in  this  case,  because  the  statutes 
which  direct  the  manner  of  granting  administration,  have  not  pro- 
vided for  it.  If  William  Smith,  the  surviving  executor  of  JVeave, 
had  made  a  will  and  appointed  an  executor,  that  executor  would 
of  course  have  been  the  executor  of  JVeave.  But  having  died 
intestate,  there  is  no  privity  between  his  administrator  and  the  ex- 
ecutors of  JVeave.  In  such  cases,  it  has  been  usual  to  grant  ad- 
ministration with  the  will  annexed,  to  some  of  those  persons  who 
were  residuary  legatees  of  the  testator,  or  if  there  were  no  residu- 
ary legatees,  to  some  of  those  who  were  interested  in  the  estate  as 
next  of  kin,  or  otherwise. 

In  the  case  before  us  there  are  no  kin,  nor  was  the  grant  of  the 
administration  to  S?nith,  opposed  by  the  creditors  of  Neave,  or  by 
the  commonwealth,  to  whom  the  counsel  for  the  appellant  suppose, 
the  residue  may,  perhaps,  belong  by  escheat.     It  is  conceded,  that 
the  administration  has  been  committed  to  a  person  of  fair  charac- 
ter, who  has  given  good  security  to  the  amount  required  by  the 
Register's  Court.     Under  these  circumstances,  it  is  not  perceived, 
on  what  principle  this  court  should  revoke  the  letters.     The  dis- 
cretion of  the  Register's  Court,  seems  to  have  been  well  exercised, 
in  a  matter  which  the  law  committed  to   their  sound  discretion. 
The  surviving  executor  of  Neave  had  the  legal  property  in  the  re- 
sidue of  his  estate,  and  it  certainly  is  by  no  means   clear  (to  say 
the  least  of  it,)  that  there  was  an  outstanding  equity  against  him. 
But  if  the  commonwealth,  or  any  individual,  conceive  that  they 
have  an  equity,  the  administrator,  with  the  will  annexed,  may  be 
called  to  account.     The  only  objection  to  Samuel  Smith,  which  has 
the  least  plausibility  is,  that  supposing  his  father  to  be  indebted  to 
the  estate  of  JVeave,  it  is  not  his  interest  to  make  up  the  account. 
But  there  is  such  a  thing  as  carrying  jealousy  too  far.     No  person 
has  been  proposed,  who  was  better  qualified.     No  person  who  had 
a  right  to  be  jealous,  has  expressed  his  jealousy.     And  it  is  to  be 
recollected,  that  Samuel  Smith  having  the  possession  of  his  father's 
papers,  has  the  means  of  a  better  knowledge  of  the  estate  of  JVeave, 
than  any  other  person,  and  consequently,  will  be  better  qualified 
for  collecting  the  debts  due  to  the  estate,  and  repelling  any  unjust 
claims  which  may  be  brought  forward  against  it.     I  am  there- 
fore of  opinion,  that  the  decree  of  the  Register's  Court  should  be 
affirmed. 

Decree  affirmed. 


Dec.  1822.]  OF  PENNSYLVANIA.  191 

[Philadelphia,  jan.  6th,  1823.] 

ROBBARTS  Appellant  against  ROBBARTS,  by  her  next  friend 

GIBSON,  Appellee. 

APPEAL. 

An  appeal  lies  to  the  Supreme  Court,  on  a  decree  of  divorce  from  bed  and  board, 
and  alimony  in  the  Court  of  Common  Pleas,  under  the  act  of  the  26th  February, 
1817. 

Appeal  from  the  decree  of  the  Court  of  Common  Pleas  of  the 
County  of  Philadelphia. 

On  the  libel  of  Christiana  Robbarts,  the  appellee,  by  her  next 
friend  James  Gibson,  against  John  Robbarts  the  appellant,  and  a 
verdict  in  favour  of  the  libellant,  on  several  issues  joined,  the  court 
below,  decreed  a  divorce  from  bed  and  board,  and  alimony.  From 
this  decree,  the  defendant  below  appealed  to  this  court. 

King  $'  Chauncey,  for  the  appellee,  moved  that  the  appeal  should 
be  dismissed ;  contending,  that  as  the  act  of  assembly  gave  no  ap- 
peal in  such  case,  this  court  could  not  entertain  it.  The  act  of  13th 
March,  1815,  gives  an  appeal  in  case  of  a  decree  from  the  bond  of 
marriage  :  but  the  supplement,  passed  on  the  26th  February,  1817, 
to  enable  the  court  to  decree  divorces  from  bed  and  board,  is  silent 
on  the  subject.  This  court  cannot  exercise  an  appellate  jurisdic- 
tion, not  vested  by  act  of  assembly.  In  Miller  v.  Miller,  3  Binn, 
30,  it  is  observed  by  the  court,  that  causes  of  divorce  and  alimony 
are,  in  general,  not  cognizable  in  common  law  courts  :  and  that  be- 
ing a  jurisdiction  of  a  peculiar  nature,  vested  by  act  of  assembly,  the 
mode  of  proceeding  prescribed  by  the  act,  and  no  other  should  be 
pursued  ;  and  they  refused  to  sustain  a  writ  of  error,  because  the  act 
of  assembly  then  in  force  on  the  subject,  did  not  authorize  it. 
From  the  silence  of  the  legislature  in  the  year  1817,  it  is  to  be  pre- 
sumed, they  intended,  that  in  cases  of  divorce  from  bed  and  board, 
the  decree  of  the  Court  of  Common  Pleas  should  be  conclusive. 
The  act  of  2d  April,  1804,  4  Sm.  Laws,  182,  which  was  repealed 
by  the  act  of  13th  March,  1815,  expressly  gave  an  appeal  to  the 
Supreme  Court,  or  high  court  of  errors  and  appeals.  They  further 
argued  that  a  divorce  from  bed  and  board,  differs  from  a  divorce 
from  the  bond  of  matrimony,  in  this,  that  the  former  ceases  on  a  re- 
conciliation of  the  parties,  and  is,  therefore,  not  final,  but  the  latter 
is.  This  may  haye  been  one  reason  why  the  legislature  gave  no 
appeal  in  the  case  of  a  divorce  from  bed  and  board,  and  is  sufficient 
to  deprive  the  party  of  a  remedy,  which  can  be  had  only  where  the 
decree  is  final. 

The  court  relieved  E.   S.  Sergeant  and  J.  R.  lngcrsoll  from  ar- 
guing on  behalf  of  the  appellant,  and  their  opinion  was  delivered  by 

Tilghman,  C.  J.      The    appellee,     Christiana  Bobbarts,    exhi- 
bited a  petition  on  the  5th  Jfovember,  1819,  to  the  Court  of  Com- 


192  SUPREME  COURT  [Philadelphia, 

(Robbarts,  Appellant  v.  Robbarts,  by  her  next  friend  Gibson,  Appellee.) 

mon  Pleas  for  the  County  of  Philadelphia  praying  for  a  divorce 
from  bed  and  board,  and  alimony.  The  court  made  a  decree  in  her 
favour,  from  which  her  husband,  John  Robbarts,  appealed.  A  mo» 
tion  has  been  made  to  dismiss  the  appeal,  and  the  question  is, 
whether  an  appeal  lies  in  this  case. 

On  the  13th  March,  1815,  an  act  was  passed,  "  concerning  di- 
vorces," which  was  intended  as  a  complete  system,  and  repealed  the 
former  acts  on  the  same  subject.  By  the  first  section  it  was  enacted, 
that  "  where  any  husband  shall  have,  by  cruel  and  barbarous  treat- 
ment, endangered  his  wife's  life,  or  offered  such  indignities  to  her 
person,  as  to  render  her  condition  intolerable,  and  life  burdensome, 
and  thereby  force  her  to  withdraw  from  his  house  and  family,  it  shall 
be  lawful  for  the  innocent  and  injured  person,  to  obtain  a  divorce 
from  the  bond  of  marriage."  By  the  twelfth  section,  the  court  was 
authorized  to  award  costs,  to  be  paid  by  the  party  against  whom  the 
degree  is  made,  or  that  each  party  shall  pay  his  or  her  own  costs, 
at  their  discretion.  The  thirteenth  section  gives  an  appeal  to  the 
Supreme  Court,  in  all  suits  or  actions  to  be  brought  under  that  act. 
It  was  soon  discovered,  that  this  law  was  defective,  inasmuch  as  it 
contained  no  provision  for  divorces  from  bed  and  board,  or  alimony. 
To  remedy  this  omission,  an  act  was  passed  on  the  26th  February, 
1817,  entitled  a  supplement  to  "  an  act  concerning  divorces."  By 
this  supplement,  in  case  of  such  ill  treatment  as  is  mentioned  in  the 
first  section  of  the  act  of  1815,  the  Court  of  Common  Pleas  was  au- 
thorized to  grant  the  wife  a  divorcejTmm  bed  and  board,  and  also  to 
allow  her  alimony ;  to  continue  until  a  reconciliation  should  take 
place,  or  until  the  husband  should  by  his  petition,  or  libel,  offer  to 
receive  and  cohabit  with  his  wife  again,  and  in  such  case,  the  court 
might  suspend  their  sentence,  or  in  case  of  her  refusal  to  return  to 
her  husband,  discharge  and  annul  the  same,  according  to  their  dis- 
cretion. But  there  is  no  mention  of  an  appeal  to  the  Supreme  Court, 
and,  therefore,  it  is  contended  that  no  appeal  lies. 

It  is  very  true,  that  all  these  proceedings  being  contrary  to  the 
course  of  the  common  law,  they  must  be  prosecuted  in  the  manner 
prescribed  by  the  acts  of  assembly,  and  unless  an  appeal  is  given  by 
these  acts  it  does  not  lie.  It  is  true  also,  that  this  case  does  not 
come  within  the  letter  of  the  act  of  1815,  because  the  suit  was 
brought,  not  under  that  act,  but  under  the  supplement.  Never- 
theless, it  appears  to  the  court,  that  the  original  act,  and  supple- 
ment are  so  blended,  as  parts  of  one  system,  that  the  appeal  lies 
in  all  suits  prosecuted  under  the  one  or  the  other.  So  likewise 
may  costs  be  given  in  all  suits,  though  the  supplement  says  noth- 
ing of  costs.  It  was  unnecessary  for  the  supplement  to  give  either 
an  appeal  or  costs,  because  it  was  engrafted  on  the  original  law 
which  gave  both.  It  was  objected,  that  a  decree  of  alimony  could 
not  be  final,  because  the  husband  might  avoid  it  by  offering  to 
take  his  wife  home,  and  treat  her  kindly  :  but  we  do  not  think  so 


Dec.  1822.]  OF  PENNSYLVANIA.  193 

(Rubbartp,  Appellant  v.  Robbarts,  by  her  next  friend  Gibson,  Appellee.) 

The  decree  is  final  and  conclusive,  though  subject  to  be  suspended, 
or  annulled,  in  consequence  of  subsequent  acts  of  the  husband.  If 
he  never  offers  to  take  his  wife  home,  the  decree  remains  in  full 
force,  and  nothing  further  is  to  be  done  by  the  court.  There  is  no 
reason,  therefore,  why  it  should  not  be  appealed  from.  And  it  may 
be  of  the  utmost  importance  to  the  husband,  to  have  an  appeal. 
The  decree  may  be  ruinous  to  him,  by  burdening  him  beyond  his 
abilities.  It  is  the  opinion  of  the  court,  that  the  appeal  lies,  and 
therefore  the  motion  to  dismiss  it  is  rejected. 

Motion  rejected. 


[Philadelphia,  Jan.  17tb,  1824.] 

LEWIS  and  others  against  REEDER. 

IN  ERROR. 

In  a  suit  against  the  maker  of  a  promissory  note,  made  payable  without  defalca 
tion,  by  an  indorsee  to  whom  it  has  passed  for  a  valuable  consideration,  and  in  the 
course  of  business,  evidence  cannot  be  given   by  the  defendant  under  the  plea  of 
payment,  of  a  failure  of  the  consideration  for  which  the  note  was  given,  though 
such  note  be  not  dated  in  Philadelphia  City  or  County,  nor  discounted  by  a  bank, 
nor  deposited  in  a  bank  for  collection. 

By  the  bill  of  exceptions  returned  in  this  case,  to  the  writ  of  er- 
ror to  the  Common  Pleas  of  Northampton  County,  it  appeared 
that  this  suit  was  brought  against  John  Lewis,  Jonas  Doan  and 
Thomas  MCrackin,  plaintiffs  in  error,  and  defendants  below,  by 
Absalom  Reedier,  indorsee  of  William  Lander,  plaintiff  below,  upon 
a  promissory  note  for  418  dollars  30  cents,  drawn  by  the  de- 
fendants below,  in  favour  of  William  Lander  or  order,  payable  on 
or  before  the  1st  April,  1819,  without  defalcation,  for  value  re- 
ceived. The  defendants  pleaded  non  assumpserunt,  and  payment 
with  leave  ;  and  under  a  notice  of  the  special  matter  previously 
given,  offered,  on  the  trial,  to  prove  that  the  note  was  given  as  part 
consideration  for  a  messuage  and  lot  of  land,  agreed  to  be  conveyed 
by  William  Lander  to  John  Lewis,  one  of  the  defendants,  clear  of  in- 
cumbrances, and  that  Lander,  in  consequence  of  having  no  title  to 
the  same,  had  never  been  able  to  make,  and  had  not  made  such  con- 
veyance ;  whereby  the  consideration  for  which  the  note  was  given 
had  utterly  failed.  The  note  wras  indorsed  before  it  became  due, 
by  Lander  to  Reeder,  for  a  full  and  valuable  consideration.  The 
plaintiff  objected  to  the  evidence  offered  by  the  defendants,  and  the 
court  rejected  it.    The  defendants  tendered  their  bill  of  exceptions. 

A.  Randall  and  Tilghman,  for  the  plaintiffs  in  error,  contended, 
that  the  court  below  ought  to  have  admitted  the  evidence.  In 
Pennsylvania,  the  legal  effect  of  a  promissory  note  depends  alto- 
gether on  the  act  of  the  28th  May,  1715,  which  declares  that  bc- 

vol.  ix.  2  B 


194  SUPREME  COURT  [Philadelphia, 

(Lewis  and  others  v.  Reeder.) 

fore  that  time  they  were  not  indorsable,  and  enables  the  indorsee  to 
recover  the  "  money  mentioned  in  such  notes,  or  so  much  there- 
of, as  shall  appear  to  be  due  at  the  time  of  such  assignment."  Purd. 
Dig.  69.  The  indorsee,  therefore,  takes  them  subject  to  every 
equity  to  which  they  were  liable  at  the  time  of  the  assignment :  and 
this  was  solemnly  decided  by  the  Supreme  Court,  in  the  case  of 
MCullough  v.  Houston,  1  Ball  441,  where  it  was  held,  that 
under  this  act,  bonds  and  promissory  notes  are  placed  exactly  on 
the  same  footing,  except  that  bonds  and  specialties  are  by  the  act, 
to  be  assigned  under  hand  and  seal,  and  in  the  presence  of  two  or 
more  credible  witnesses. 

This  case  has  always  been  considered  as  settling  the  law,  and  it 
was  so  taken  for  granted  in  Stille  v.  Lynch,  2  Dull  194,  and  was 
recognised  in  Ludlow  v.  Bingham,  4  Dull  62.  Indeed,  so  firmly 
was  the  principle  established,  that  it  became  necessary  to  pass  the 
act  of  27th  February,  1797,  to  place  promissory  notes  drawn  in 
Philadelphia,  on  an  equal  footing  with  notes  in  the  neighbouring 
states:  and  by  that  act,  3  Smith's  Laws,  278,  promissory  notes 
bearing  date  in  the  city  and  county  of  Philadelphia,  and  drawn 
payable  for  value  received,  and  without  defalcation,  or  without  set 
oft*,  were  to  be  held  by  the  indorsee,  discharged  from  any  claims  of 
defalcation  or  set  off.  Before  that  act,  the  indorsee  of  every  pro- 
missory note  in  this  state,  held  it  liable  to  every  set  oft*  and  species 
of  defence,  legal  or  equitable,  of  which  the  drawer  might  have 
availed  himself  against  the  payee.  Cromwell's  Exors.  v.  Arrot,  1 
Serg.  fy  Rawle,  180.  And  since  that  act,  the  rule  is  the  same,  except 
only,  as  to  notes  drawn  according  to  the  act.  The  note  in'  the  pre- 
sent case,  though  expressed  to  be  for  value  received,  and  payable 
without  defalcation,  is  not  dated  in  the  city  and  county  of  Phila- 
delphia, and,  therefore,  is  not  comprized  within  the  provisions  of 
the  act  of  1797.  It  will  not  be  denied,  that  if  the  payee  had  brought 
this  suit,  the  defendants  might  have  protected  themselves,  by  show- 
ing want  of  consideration :  and  if  so,  the  same  right  exists  against 
the  indorsee.  The  justice  and  equity  of  the  case  is  with  the  de- 
fendants, who  would,  otherwise,  be  obliged  to  pay  a  sum  of  money 
without  receiving  any  value.  There  is  no  hardship  on  the  plain- 
tiff because  it  is  to  be  presumed,  that  all  parties  knew  the  law,  that 
the  indorsee  in  this  state,  takes  such  a  note,  as  he  does  a  bond,  sub- 
ject to  all  the  equities  existing  between  the  original  parties. 

Scott  and  Hopkins,  contra.  It  is  very  clear,  that  by  the  gene- 
ral commercial  law,  the  indorsee  of  a  promissory  note,  cannot  be 
affected  by  any  equity  which  subsists  between  the  maker  and  payee. 
Chitt.  on  Bills,  89,  91.  No  evidence  of  want  of  consideration,  or 
other  ground  to  impeach  the  apparent  value  received,  was  ever 
admitted  in  a  case  between  an  acceptor  or  drawer  of  a  bill  of  ex- 
change, and  a  third  person  holding  the  bill  for  value.  Collins  v. 
Martin,  1  Bos.  fy  Pull.  651.  Smith  v.  Knox,  3  Esp.  46.  Chaises 
v.  Marsdcn,  1  Taunt.  223.     This  principle  is  well  settled  in  other 


Dec.  1822.]  OF  PENNSYLVANIA.  195 

(Lewis  and  others  v.  Recder.) 

states  of  the  Union.  Baker  v.  Arnold,  2  Caines,  279.  Brown  v. 
Mott,  7  Johns.  361,  6  Mass.  428.  Per/cins  v.  Sullivan,  4  JWass. 
45.  It  would  be  unfortunate  if  Pennsylvania  should  be  separated 
from  all  the  mercantile  world  on  so  important  a  point.  As  to  the 
case  of  Ml  Cullough  v.  Houston,  it  may  be  remarked,  that  commer- 
cial law  was  not  so  well  understood  in  1789,  when  that  case  was  de- 
cided, as  it  has  since  been,  and  its  authority  has  been  since  shaken. 
In  Ludlow  v.  Bingham,  4  Dull.  63,  Judges  Shippen  and  Addison, 
disputed  the  authority  of  Mc  Cullough  v.  Houston.  But  without 
impugning  the  correctness  of  that  decision,  it  is  clearly  distinguish- 
able from  the  present. 

The  note  here  is  expressly  drawn  payable  without  defalca- 
tion. Why  may  not  a  man  contract  to  pay  the  amount  apparent 
on  the  face  of  the  note,  at  all  events,  and  without  defalcation,  and 
why  may  not  such  a  contract  be  binding?  The  form  of  making 
notes  payable  without  defalcation,  is  peculiar  to  Pennsylvania,  and 
was  adopted  probably  with  the  view  to  assimilate  these  instruments 
to  the  principles  of  general  commercial  law.  So  strongly  has 
the  desire  of  the  legislature  been  shown  on  this  subject,  that  under 
the  eighth  section  of  the  act  regulating  banks,  Purd.  Dig.  59,  notes 
or  bills  discounted  by  the  banks  thereby  created,  or  deposited  for 
collection  and  falling  due  there,  are  placed  on  the  footing  of  fo- 
reign bills  of  exchange.  That  a  maker  of  a  note  or  other  instru- 
ment, may  specially  engage  to  pay  the  amount  thereof  to  an  as- 
signee, without  abatement  or  deduction,  appears  from  the  case  of 
Fenner  v.  Meares,  2  W.  Bl.  1269,  where  the  obligor  of  a  respon- 
dentia bond  was  held  liable  to  pay  principal  and  interest,  to  an  as- 
signee, he  having  engaged  to  pay  any  assignee  such  amount,  with- 
out any  abatement  or  deduction  whatever. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  brought  by  Absalom  Reeder, 
indorsee  of  William  Lander,  on  a  promissory  note,  drawn  by  the 
defendants,  (who  are  plaintiffs  in  error, )  payable  to  William  Lan- 
der, or  order,  for  value  received,  without  defalcation.  The  de- 
fendants pleaded  non  assumpserunt,  with  notice  of  special  matter 
to  be  given  in  evidence,  and  on  the  trial,  offered  evidence,  that  the 
consideration  of  the  note  had  failed.  This  evidence  was  objected 
to  by  the  counsel  for  the  plaintiff,  and  rejected  by  the  court.  The 
defendants  excepted  to  the  court's  opinion,  and  on  that  exception, 
the  cause  has  been  argued.  It  was  conceded  by  the  counsel  for  the 
plaintiffs  in  error,  that  by  the  general  commercial  law,  the  evidence 
was  not  admissible.  But  they  contended,  that  it  was  admissible  by 
the  act  of  assembly  of  1715,  1  Sm.  L.  96,  by  which  promissory 
notes  were  made  assignable,  and  in  which  it  is  provided,  that  the 
assignee  may  sue  in  his  own  name,  and  receive  the  money  men- 
tioned in  the  note,  or  so  much  thereof  as  shall  appear  to  be  due 
at  the  time  of  the  assignment.  The  construction  put  upon  this 
act,  in  the  case  Ml  Cullough  v.  Houston,  was,  that  the  indorser 


196  SUPREME  COURT  [Philadelphia, 

(Lewis  and  others  v.  Reeder.) 

of  a  promissory  note,  takes  it,  subject  to  all  equitable  considera- 
tions, to  which  it  was  subject  in  the  hands  of  the  original  payee. 
The  authority  of  this  case  is  not  now  to  be  questioned,  although  it 
must  be  confessed,  that  it  has  been  submitted  to  with  great  reluc- 
tance, and  the  general  opinion  certainly  is,  that  had  the  point  been 
first  discussed  ten  years  later,  it  would  have  received  a  different 
decision.  It  was  found,  however,  as  our  commerce  increased,  that 
the  principle  of  defalcation,  was  incompatible  with  the  negotiability 
of  paper;  and,  therefore,  the  legislature  was  obliged  to  interfere. 
By  the  act  of  27th  February,  1797,  it  was  enacted,  that  promis- 
sory notes  bearing  date  in  the  city  or  county  of  Philadelphia, 
whereby  any  person  should  promise  to  pay  to  another,  or  his  or- 
der, any  sum  of  money,  for  value  received,  and  in  the  body  of 
which,  the  words  "  without  defalcation,"  or  "  without  set  off," 
should  be  inserted,  should  be  held  by  the  indorsee,  discharged  from 
any  claim  of  defalcation,  or  set  off,  by  the  drawer,  or  indorsers 
thereof,  and  the  indorsees  should  be  entitled  to  recover  against  the 
drawer  and  indorsers,  such  sum  as  on  the  face  of  the  note,  or  by 
indorsement  thereon,  should  appear  to  be  due.  And  by  another 
act,  passed  the  21st  March,  1813,  (by  which  40  banks  were  in- 
corporated,) it  is  enacted,  section  13,  that  all  notes  or  bills,  at 
any  time  discounted  by  any  of  the  said  banks,  or  deposited  for  col- 
lection, and  falling  due  at  any  of  the  said  banks,  shall  be  placed  on 
the  same  footing  as  foreign  bills  of  exchange,  8fc.  Now  it  is  not 
contended,  that  foreign  bills  of  exchange,  in  the  hands  of  an  in- 
dorsee for  valuable  consideration,  are  liable  to  set  off,  or  defalcation, 
on  account  of  any  want  of  consideration :  so  that  the  anticommercial 
principle  set  up  in  the  case  of  M'Cullough  v.  Houston,  has,  in 
most  instances,  been  rendered  harmless,  by  legislative  provision. 
But  there  are  some  cases  out  of  the  purview  of  the  acts  I  have  men- 
tioned, and  the  note  in  question  presents  one  of  them.  For,  it  is 
neither  dated  in  the  city  or  county  of  Philadelphia ;  nor  was  it 
discounted  in  any  of  the  banks,  or  deposited  in  them  for  collection. 
It  must  be  acknowledged,  that  it  is  very  desirable,  the  law  with 
respect  to  the  right  of  defalcation,  should  be  placed  on  some  certain 
and  uniform  principle,  and  not  left  to  depend  on  the  accident  of  a 
note's  being  discounted  by  a  bank,  or  deposited  in  it  for  collection. 
Indeed,  I  consider  it  as  the  duty  of  this  court,  to  put  it  on  such 
footing,  unless  there  be  some  act  of  assembly  to  the  contrary.  It 
comes  to  this  question  then,  whether  there  be  any  act  of  assembly 
forbidding  the  maker  of  a  promissory  note  to  agree,  that  he  will 
pay  it  without  defalcation.  It  would  be  extraordinary,  indeed,  if 
there  were,  because,  undoubtedly,  such  an  agreement  makes  the 
note  more  valuable,  being  of  more  easy  circulation,  and  no  man 
has  a  right  to  complain  of  hardship,  who  is  compelled  to  do  no  more 
than  what  he  has  engaged  to  do.  Not  one  of  our  acts  of  assembly 
contain  any  thing  like  an  express  prohibition  of  such  an  agreement. 
The  act  of  1797,  is  affirmative,  and  declares  that  when  an  agreement 


Dec.  1822.]  OF  PENNSYLVANIA.  197 

(Lewis  and  others  v.  Recder.) 

of  this  kind  appear  in  a  note,  bearing*  date  in  the  cily  or  county  of 
Philadelphia,  it  shall  be  performed.     As   to  all  other  notes,  it  is 
silent.     It  would,  therefore,  be  contrary  to  all  rules  of  fair  reason- 
ing* to  infer  an  intention  in  the  act  of  1797,  to  make  all  promissory 
notes  subject  to  defalcation,   unless  they  bear  date  in  the  city  or 
county  of  Philadelphia,  whatever  might  be  the  agreement  of  the 
parties.     The  case  of  MCullongh  y.  Houston,  was  not  upon  a 
note,  vnlhoitt  defalcation,  and  as  its  authority  ought  certainly  not 
to  be  extended  by  equity,  it  has  very  little  bearing  in  the  case  be- 
fore us.     The  commercial  law  disregards  form,  and  is  bottomed  on 
good  faith.     And  is  there  not  a  breach  of  good  faith,  in  putting  pa- 
per into   circulation,  with  an  assurance  on  its  face,  that  it  shall  be 
paid  at  all  events,  and  then  endeavouring  to  defeat  it,  under  pre- 
tence of  secret  transactions  between  the  maker  and  original  payee  ? 
Between  them,  there  is  no  objection  to  entering  into  the  considera- 
tion of  the  note  ;  because  such  is  privy  to  the  original  transaction. 
But  when  such  a  defence  is  set  up  against  an  indorsee  who  has  paid 
full  value  for  the  note,   without  notice  of  any  thing  which  should 
avoid  it,  there  is  something  very  like  fraud.     I  think  the  principle 
which  should  govern  this  case,  has  been  often  decided.     We  have 
held  that  if  the  assignee  of  a  bond,  inquires  of  the  obligor,  before 
he  takes  the  assignment,  whether  he  has  any  thing  to  say  against 
payment,  and  is  answered,  that  the  bond  is  good,  the  obligor  shall 
never  after  be   permitted  to  dispute   payment.      This  is  upon  the 
broad  principle- of  equity,  which  corrects  the  provision  of  the  act  of 
1715,  by  which  the  assignee  is  disabled  from  recovering  more  than 
could  have  been  recovered  by  the  obligor.     For,  the  principle  which 
I  have  mentioned,  I  refer  to  the  cases  of  Ludwick  v.  Croll,  2  Yeates, 
464,  and  Carnes  v.  Field  fy  Harlam,  2   Yeates,  541.     Now,  to  be 
sure  the  indorsee  of  this  note  did  not  inquire  of  the  maker,  whether 
he  had  any  objection  to  payment.     And  why  should  he,  when  he 
had  his  engagement  in  the  body  of  the  note,  that  he  would  make  no 
objection  ?     Upon  the  faith  of  this  engagement  he  paid  his  money, 
so  that  his  case  is  within  the  spirit  of  the  authorities  I  have  cited. 
I  will  mention  two  other  cases,  very  similar  in  principle,  to  the  one 
before  us.     In  Fenner  v.  Meares,  2  W.  Black,  1269,  A.  had  given  a 
respondentia   bond  to  B.,  and   agreed  by  a  writing  indorsed  on  the 
bond,  that  he  would  pay  the  whole,  principal  and  iuterest,  to  the  as- 
signs of  B.,  without  any  deduction  or  abatement  whatever:  B.  as- 
signed the  bond  to  C.  for  a  valuable  consideration  and  in  an  action 
on  the  case  by  C.  against  A.,  it  was  held,  that  the  whole,  principal 
and  interest,  was  recoverable.     In   Colson  v.  Welsh,  1.  Esp.  Rep 
378,  it  was  decided,  that  where  one  promises  to  pay  a  certain  sum 
absolutely,  he  shall  not  be   permitted  to  set  off.     I  said  before,  that 
between  the  original  parties,  (the  maker  and  the  payee,)  the  consi- 
deration might  be  inquired  into,  although  the   promise  was,  to  pay 
"  without  defalcation."     The  reason  is  this:   the  words  "without 
defalcation"  were   introduced   into   promissory  notes,  solely  for  the 


198  SUPREME  COURT  [Philadelphia, 

(Lewis  and  others  v.  Recder.) 

purpose  of  taking;  them  out  of  the  principle  established  in  the  case 
of  MCullovgh  v.  Houston,  for  the  purpose  of  making;  them  subject 
to  the  rules  of  the  general  mercantile  law,  but  not  to  carry  them  be- 
yond that  law.  This  construction  was  given  to  them,  in  the  case  of 
CromwelPft  Eccors.  v.  Jlrrott,  1  S.  <§•  R.  180.  So  that  the  under- 
standing; of  the  parties  must  be  taken  to  have  been,  that  this  note 
should  be  on  the  footing;  of  promissory  notes  in  England.  That 
being;  the  case,  there  is  no  breech  of  faith  in  the  maker's  setting;  up 
a  failure  of  the  consideration  against  the  payee.  But  when  the 
note  gets  into  the  hands  of  a  third  person,  for  valuable  consideration 
in  the  course  of  business,  the  case  is  widely  different.  For  then  the 
holder  looks  to  the  face  of  the  note,  and  is  not  bound  to  make  any 
inquiry  beyond  it.  This  was  the  case  with  the  plaintiff,  and  I  am, 
therefore,  of  opinion,  that  the  evidence  offered  by  the  defendant  to 
prove  a  failure  of  consideration,  was  properly  rejected.  The  judg- 
ment is  to  be  affirmed. 

Judgment  affirmed. 


[Philadelphia,  Feb.  10th,  1823.] 

GIBBS  against  CANNON. 


9SR  198 
30  SO  2400 


IN  ERROR. 


On  a  guaranty  of  a  promissory  note,  drawn  and  indorsed  by  others,  if  the  drawer 
and  indorser  are  insolvent  when  the  note  becomes  due,  this  would,  prima  facie, 
be  evidence  that  the  guarantor  was  not  prejudiced,  and  therefore  the  giving  him 
notice  of  non-payment,  is,  in  such  case,  dispensed  with. 

If  notice  be  alleged  in  the  declaration,  it  is  not  incumbent  on  the  plaintiff  to 
prove  it. 

Error  to  the  District  Court  for  the  city  and  county  of  Philadel- 
phia, in  a  suit  brought  by  Daniel  B.  Cannon,  the  plaintiff  below, 
against  John  Gibbs,  in  which  a  verdict  and  judgment  were  had  for 
the  plaintiff. 

It  was  an  action  on  a  guaranty  by  the  defendant  on  a  promissory 
note,  drawn  by  John  Y.  Bryant, \n  favour  of  Mordecai  Y.  Bryant, 
dated  the  6th  March,  1819,  for  521  dollars  and  33  cents,  which  be- 
came due  on  the  7th  May,  1819.  Demand  had  been  made  on  the 
drawer,  and  due  notice  given  to  the  indorser  ;  but  when  the  note  was 
payable  they  were  both  insolvent.  No  notice  was  given  to  the  plain- 
tiff prior  to  the  institution  of  this  suit,  which  was  on  the  14th  July, 
1819.  The  declaration  averred  notice  to  have  been  given  to  the 
defendant. 

On  the  trial,  the  plaintiff  offered  in  evidence  the  protest  of  the 
note,  to  show  the  non-payment  of  the  note,  and  notice  to  the  indorser. 
It  was  objected  to,  but  the  court  admitted  it,  and  the  defendant  ex- 
cepted. 


Dec.  1822.]  OF  PENNSYLVANIA.  199 

(Gibbs  v.  Cannon.) 

The  court  below  charged  as  follows: 

The  defendant  contends,  that  if  the  evidence  should  induce  the 
jury  to  suppose  a  guaranty  took  place,  then,  it  being  a  guaranty  of 
a  promissory  note,  the  plaintiff,  to  entitle  himself  to  recover,  must 
show,  that  when  the  note  became  due  and  remained  unpaid,  the 
plaintiff,  thereunpon,  or  within  a  reasonable  time  thereafter,  gave  no- 
tice to  the  indorser,  and  to  the  guarantor,  of  such  non-payment, 
and,  by   some  declaration  or  act  made,  known  to  the  guarantor, 
that  he  held  him  liable  on  his  guaranty.     The  rule,  as  to  notice  to 
an  indorser,  of  non-payment  by  the  drawer  of  a  promissory  note, 
is  founded  on  commercial  law.     The  contract,  express  or  implied, 
is,  that  the  indorser  will  pay  if  the  drawer  does  not;  and  by  the 
commercial  law,  the  indorser  must  have  notice  of  such  non-pay- 
ment, as  soon  as,  from  the  situation  of  the  parties,  it  can  be  given. 
The  contract  by  the  indorser  is  not  to  pay  at  all  events.     But  a 
guaranty  is  not  a  conditional  contract,  but  an  absolute  engagement 
for  the  payment  of  the  note  at  all  events.     The  guarantor  under- 
takes, not  only  for  the  solvency  of  the  parties,  but  that  they  shall 
pay  the  note,  or  he  will.     Therefore,  he  is  bound  to  inquire,  and  see 
that  the  note  is  paid.     He  is  an  actor.     It  results,  that  it  is  not  ne- 
cessary for  the  holder  of  the  note  to  give  to  the  party  guaranteeing, 
notice  of  its  non-payment.     The  holder,  however,  is  bound  not  to 
do  any  act,  or  omit  to  do  any  act,  which  would  discharge  the  par- 
ties to  the  note,  or  injure  the  rights  of  the  party  guaranteeing  against 
the  parties  to  the  note.     Hence,  the  holder  is  bound  to  give  notice 
to   the  indorser,  or  the   parly  guaranteeing  would  be  discharged. 
Of  this  notice,  the  allegation  in  the  protest  is,  prima  facie,  evi- 
dence.    So,  the  holder  can  do  no  act  that  will  change  the  situation 
of  his  surety,  such  as  giving  time. 

It  has  been  urged,  that  on  the  principles  of  the  case  cited  from 
2    Taunton,  notice  of  the    non-payment   is  necessary.     I  do   not 
think  so ;  but  if  it  were,  the  law  is  different  in  Pennsylvania,  and 
even  if,  in  common  cases,  it  were  the  law,  it  would  not  be  in  the 
present  instance,  because  the  drawer  and  indorser  were  both  insol- 
vent at  the  time  the  note  became  due.     The  guarantor  stands  dif- 
ferently from  an  indorser.     The  former  engages  for  the  solvency 
of  the  parties,  as  well  as  for  the  payment  of  the  note. 
The  defendant  excepted  to  the  charge  of  the  court. 
Scott,  for  the  plaintiff  in  error,  abandoned  the  first  bill  of  excep-' 
tions  to  the  protest,  the  point  having  been  decided  in  this  court, 
Browne  v.  Philadelphia  Bank,  Serg.  fy  Rawle,  484. 

As  to  the  exception  taken  to  the  charge  of  the  court,  he  con- 
tended, that  the  holder  of  the  note  was  bound  to  give  notice  of  non- 
payment to  the  guarantor,  who  stood  in  the  situation  of  an  indorser, 
and  as  notice  was  not  given  in  time,  the  plaintiff  was  not  entitled 
to  recover.  The  note  became  due  on  the  7th  May,  1819,  and  suit 
was  brought  against  the  defendant,  Gibbs,  on  the  14th  July,  1819, 
which  was  the  first  notice  he  had  of  the  non-payment  of  the  note. 


200  SUPREME  COURT  [Philadelphia, 

(Gibbs  v.  Cannon.) 

Every  person  is  entitled  to  notice] who  is  to  be  made  liable  on  a 
note,  on  the  default  of  another.  In  Brower  v.  Jones,  3  Johns. 
230,  where  a  creditor  received  from  his  debtor,  an  order  on  a  third 
person,  for  the  amount  of  his  debt,  dated  9th  December,  1804, 
which  the  drawer  agreed  to  pay  in  ten  or  fifteen  days,  and  the  or- 
der was  not  presented  until  March,  or  many  weeks  after,  and  in 
the  mean  time  the  drawer  failed,  it  was  held,  that  the  holder  had 
not  used  due  diligence.  In  M'lver  v.  Richardson,  1  Maule  8f 
Selw.  557.,  which  was  a  case  of  guaranty,  notice  was  given;  as  it 
was  also  in  the  case  of  Bank  of  New  York  v.  Livingston,  2  Johns. 
Cas.  409.  Chitty  in  his  treatise  on  bills,  264,  lays  down  the  rule 
to  be,  that  notice  of  dishonour  should  in  general  be  given  to  a  per- 
son who  has  guaranteed  the  payment  of  the  bill.  He  states  the  same 
principle  in  page  264.  In  Philips  v.  Astling,  2  Taunt.  205.,  it 
was  determined,  that  upon  a  guaranty  given  of  the  price  of  goods 
to  be  paid  by  a  bill,  due  notice  [of  the  non-payment  must  be  given 
both  to  the  drawer  and  acceptor,  unless  both  the  drawer  and  ac- 
ceptor are  bankrupts  when  the  bill  becomes  due.     Chitty  on  Bills, 

333,  S.  C.  Mere  insolvency  of  the  drawer  dose  not  dispense 
with  notice  to  the  indorser,   Barton  v.  Baker,  1   Serg.  #  Rawle, 

334.  Here  the  declaration  states  notice. 

J.  R.  Ingersoll,  contra.  The  allegation  of  notice  in  the  decla- 
ration is  surplusage :  or  at  least  it  is  that  kind  of  notice  which  is 
given  by  the  institution  of  the  suit.  The  ground  we  rely  on,  as 
dispensing  with  notice  of  dishonour  is,  that  it  appeared  that  the 
drawer  and  indorser  were  insolvent  when  the  note  fell  due.  This 
point  was  determined  in  Warrington  v.  Furbor,  8  East.  242, 
where  it  was  held,  that  the  same  strictness  of  proof  is  not  necessary 
to  charge  a  guarantor  which  is  necessary  to  support  an  action  upon 
the  bill  itself;  and  that  if  before  the  bill  became  due,  the  parties 
liable  upon  it  were  bankrupt  or  insolvent,  it  will  be  prima  facie 
evidence,  that  a  demand  upon  them  would  have  been  of  no  avail, 
and  will  dispense  with  the  necessity  of  giving  notice.  Chitty  on  Bills, 
264,  S.  C.  Kent,  Chancellor,  in  King  v.  Baldwin,  2  Johns.  Ch. 
559,  says,  in  speaking  of  a  surety  on  a  bond,  the  surety  was  a  gua- 
rantor, and  it  is  his  business  to  see  whether  the  principal  pays,  and 
not  that  of  the  creditor.  He  also  cited  Hunt  v.  United  States, 
2  Gall.  32.     Oxly  v.  Young,  2  H.  Bl.  613. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  bill  of  exceptions,  on  a  point  of  evidence,  has 
been  abandoned  by  the  plaintiff  in  error. 

The  remaining  point  is,  the  alleged  error  in  the  charge  of  the 
court. 

The  note,  payment  of  which  was  guaranteed  by  the  plaintiff  in 
error,  became  due  the  7th  May,  1819 ;  the  action  on  this  guaranty, 
was  brought  the  14th  July,  1819.     The  action  was  the  first  notice 


Dec.  1822.]  OF  PENNSYLVANIA.  201 

(Gibbs  v.  Cannon.) 

he  had  of  the  non-payment.  Notice  in  due  season  had  been  given 
to  the  indorser.  When  the  note  became  due,  the  drawer  and  in- 
dorser  were  both  insolvent. 

The  material  question  is,  does  a  guarantor  of  a  note,  stand  in 
the  same  situation  with  regard  to  notice,  as  parties  to  the  note  ? 
This  is  not  an  action  on  the  note,  but  on  a  collateral  promise. 
Whatever  vaccillation  prevailed  in  the  courts  for  a  time,  it  is  now 
settled,  both  in  Westminster  Hall,  and  this  court,  that  insolvency  of 
the  drawer  of  a  promissory  note  does  not  dispense  with  the  neces- 
sity of  a  demand  of  payment,  and  notice  to  the  indorser.  Esdaile 
v.  Soiverby,  11  East.  114.  Barton  v.  Baker,  1  Serg.  8?  Raivle,  334. 
As  between  the  parties  to  this  note,  the  rule  is  inflexible,  unbinding, 
open  to  no  inquiry,  whether  notice  could  have  availed  the  in- 
dorser; for  the  holder  has  no  right  to  judge  what  may  be  the  re- 
medies of  the  parties,  and  the  original  implied  contract  being,  that 
as  far  as  the  nature  of  the  original  security  will  admit,  the  surety, 
paying  the  debt,  will  stand  in  the  place  of  the  creditor,  Boulibee 
v.  Stubbs,  18  Ves.  Jr.  21,  the  presumption  of  law  is  that  he  is  in- 
jured by  want  of  notice.  Death, bankruptcy,  notorious  insolvency, 
or^the  drawer's  being  in  prison,  constitute  no  excuses,  either  at  law 
or  in  equity ;  because  many  means  may  remain  with  him  of  ob- 
taining payment,  by  the  assistance  of  friends,  or  otherwise,  of 
which  it  is  reasonable  the  indorser  should  have  an  opportunity  of 
availing  himself;  and  it  is  not  competent  to  the  holder  to  show, 
that  delay  in  giving  notice  has  not,  in  fact,  been  prejudicial. 
Haynes  v.  Birk,  3  Bos.  §■  Pull.  606.  Nor  will  knowledge  of  the 
insolvency  of  the  drawer,  and  non-payment  of  the  note,  be  equiva- 
lent to  due  notice  being  given  by  the  holder.  JVicholson  v.  Gou- 
thit,  2  H.  Bl.  612.  Staples  v.  Okines,  1  Esp.  Rep.  332.  Esdaile 
v.  Sowerby,  11  East.  117. 

In  the  case  of  Nicholson  v.  Gouthit,  before  referred  to,  the  in- 
dorsement was  by  way  of  guaranty,  and  it  was  held  to  be  liable  to 
all  the  legal  consequences  of  an  indorsement.  That  was  an  ac- 
tion on  the  indorsement.  But  in  Warrington  v.  Furbor,  8  East. 
242.,  where  the  guaranty  was  not  by  indorsement,  and  the  action 
brought  on  the  contract,  Lord  Ellenborough  observed  that  "  the 
same  strictness  of  proof,  is  not  necessary,  to  charge  the  guarantees, 
as  would  have  been  necessary  to  support  an  action  on  the  bill 
itself,  where  by  the  law  merchant,  a  demand  and  refusal  by  the 
acceptor,  ought  to  have  been  proved  to  charge  any  other  party 
upon  the  bill,  and  this  notwithstanding  his  bankruptcy.  But  this 
is  not  necessary  to  charge  guarantees,  who  insure,  as  it  were,  the 
solvency  of  the  principal,  and  therefore,  if  he  becomes  bankrupt 
and  notoriously  insolvent,  it  is  the  same  as  if  he  were  dead,  and  it 
is  nugatory  to  go  through  the  ceremony  of  making  a  demand 
upon  him."  Grose,  Justice  said  "  the  necessity  of  a  demand, 
notwithstanding  the  bankruptcy  of  the  acceptor,  in  order  to  charge 
the  drawer  or  indorser  of  a  bill,  was  founded  solely,  on  the  custom 

vol.  ix.  2  C 


202  SUPREME  COURT  [Philadelphia, 

(Gibbs  w.  Cannon.) 

of  merchants,"  and  Le  Blanc,  Justice,  says,  "  there  is  no  need  of  the 
same  proof,  to  charge  a  guarantee,  as  a  party,  whose  name  is  on 
a  bill  of  exchange,  for  it  is  sufficient  against  the  former  to  show, 
that  the  holder  of  the  bill  could  not  have  obtained  the  money  by 
making  a  demand  on  it ;"  and  Lawrence,  Justice,  "  though  proof 
of  demand  on  bankrupt  acceptors,  is  not  necessary  to  charge  a 
guarantee,  yet  the  latter  is  not  prevented  from  showing,  he  ought 
not  to  have  been  called  upon  at  all." 

In  Philips  v.  Aston,  2  Taunt.  206,  which  was  on  the  guaranty, 
not  by  indorsement,  the  acceptor  was  neither  bankrupt  nor  in- 
solvent, when  the  bill  became  due,  and  no  steps  taken  to  procure 
payment  from  a  solvent  acceptor.  It  was  held,  that  this  discharged 
the  guarantor. 

I  think,  upon  a  review  of  these  cases,  the  line  is  clearly  marked 
out.  It  is  this :  that  the  guarantor  is  discharged,  if  notice  is  not 
given  of  non-payment  to  him,  that  he  may  avail  himself  of  the  want 
of  proper  presentment  and  demand,  and  of  due  notice  of  non-pay- 
ment, where  the  drawer  and  indorser,  or  either  of  them  are  solvent 
at  the  time  the  note  became  due.  But  when  both  are  then  in- 
solvent, this  would  be  prima  facie  evidence,  that  a  demand  on 
them,  and  notice  to  the  guarantor,  would  be  of  no  avail,  and,  there- 
fore, the  giving  notice  to  a  guarantor,  not  a  party  to  the  bill,  would 
be  dispensed  with,  the  presumption  being,  that  the  guarantor  was 
not  prejudiced  by  the  want  of  notice.  Chitty  on  Bills,  262.  It  is  - 
not  necessary,  however,  to  go  farther  in  this  case  than  to  decide, 
that  demand  having  been  seasonably  made,  on  the  drawer  and  in- 
dorser, both  then  insolvent,  the  guarantor  might  be  resorted  to  for 
payment,  without  notice  of  the  non-payment,  and  that  he  would  be 
liable,  unless  he  proved  he  was  prejudiced  by  the  want  of  notice. 
Without  particularly  canvassing  every  thing  that  was  said  by  the 
court,  by  way  of  illustration,  on  the  general  view  of  the  case,  it  is 
sufficient  for  the  court  to  say,  there  was  no  error  in  the  charge  to 
prejudice  the  plaintiff. 

There  is  great  truth  in  the  observation  of  Mr.  Justice  Story  in 
Evans  v.  Eaton,  1  Wheat.  426,  that  spreading  a  charge  in  extenso, 
on  the  record,  is  an  inconvenient  practice,  and  may  give  rise  to 
minute  criticisms  and  observations  upon  points  incidentally  intro- 
duced for  purposes  of  argument  and  illustration,  by  no  means  es- 
sential to  the  merits  of  the  cause.  And  the  principle  laid  down  by 
the  Supreme  Court  of  the  United  States,  in  that  case,  is  perfectly 
just,  and  ought  to  be  applied  to  opinions  filed  under  the  act  of  as- 
sembly ;  that  in  causes  of  this  nature,  the  substance  only  of  the  charge 
is  to  be  examined,  and  if  it  appears  on  the  whole,  that  the  law  was 
justly  expounded  to  the  jury,  general  expressions,  which  may  need 
and  would  receive  qualification,  if  they  were  the  direct  point  in 
judgment,  are  to  be  understood  in  such  restricted  sense. 

It  is  proper  to  notice  one  objection  of  the  plaintiff  in  error,  that 
notice  being  alleged,  it  must  be  proved.     This  averment,  the  ac- 


Dec.  1822.]  OF  PENNSYLVANIA.  203 

(Gibbs  v.  Cannon.) 

tion  not  being  on  the  note,  the  plaintiff  in  error  being  no  party  to 
it,  was  impertinent,  not  immaterial.  The  allegation  did  not  relate 
to  the  point  in  question,  the  scepius  requisitus  being  sufficient,  as  the 
bringing  an  action  is  a  sufficient  request,  in  all  these  cases  where 
the  money  is  due  and  payable  immediately.  1  William's  Saund.  33  ; 
and  it  is  the  duty  of  the  guarantor  to  see  the  debt  is  paid. 
King  v.  Baldwin,  2  Johns.  Ch.  559.  Nothing  can  discharge 
the  guarantor  but  some  act  done  which  alters  his  situation.  1 
Mason,  539. 

The  allegation  of  special  notice  may  be  struck  out  of  the  declara- 
tion, as  it  is  framed,  and  rejected  as  impertinence  and  surplusage. 
The  difference  is  well  known  between  immaterial  averments,  which 
must  be  proved,  and  impertinent  ones  which  may  be  rejected. 
Savage  quitam  v.  Smith,  2  Wm.  Bt.  1106.  Averment  of  notice  is  not 
necessary,  where  the  matter  was  equally  within  the  knowledge  of 
the  obligor  and  -obligee.  It  is  necessary  where  the  plaintiff's  de- 
mand arises  in  secret  If  a  man  is  bound  to  another,  to  indemnify 
him  against  the  act  of  a  third  person,  notice  is  not  necessary  to  be 
given  by  the  obligee  to  the  obligor.  1  Saund.  116.  So,  if  a  man  is 
bound,  or  assumes  to  pay  money,  on  the  performance  of  an  act  by 
a  stranger,  notice  need  not  be  alleged  ;  for  it  lies  in  defendant's 
cognizance,  as  well  as  the  plaintiff's,  and  he  ought  to  take  notice  of 
it.  5  Com.  Dig.  53.  So,  if  he  assume  to  pay,  if  A.  do  not  pay. 
Ibid.  Cro.  Jac.  68. 

But  if  it  were  necessary  to  aver  notice,  as  a  condition  precedent 
to  the  right  of  recovery,  yet  if  there  exists  such  matter  in  evidence, 
as  dispenses  with  the  proof  of  it,  as  here  the  insolvency  of  the 
drawer  and  indorser,  this  will  be  the  same  thing,  as  if  it  were 
proved. 

Judgment  affirmed. (a) 


(a)  See  Murray  v.  King,  5  Barn.  <Sf  Aid.  165.     (7  Serg.  Sf  Lowb.  Ab.  57.) 


204  SUPREME  COURT  [Philadelphia, 

[Philadelphia,  Feb.  10,  1823.] 
PUSEY,  Appellant  against  CLEMSON,  Appellee. 

IN  ERROR. 

If  the  creditor  makes  his  debtor  executor,  the  debt  is  still  assets,  so  far  as  respects 
creditors  of  the  testator,  or  a  residuary  legatee. 

No  rule  can  be  established  as  to  the  amount  of  the  commissions  of  executors,  that 
will  suit  every  case.  In  common  cases,  five  per  cent,  has  been  fixed  as  the  stand- 
ard, by  common  opinion  and  understanding,  but  in  the  discretion  of  the  court,  it 
may  exceed,  or  be  less  than  that. 

Where  the  value  of  the  estate  was  near  100,000  dollars,  and  the  executors  had  little 
trouble  or  hazard,  the  care  of  lawsuits  being  intrusted  to  counsel,  who  were  paid 
by  the  estate,  and  there  being  more  than  sufficient  to  pay  debts,  and  the  receipts 
by  the  executors  were  in  large  sums  of  money,  the  court  held  three  per  cent,  a 
reasonable  allowance. 

If  an  executor  make  a  compromise  of  a  debt,  which  is  intended  for  the  benefit  of 
the  estate,  and  has  actually  been  for  its  benefit,  he  ought  not  be  charged  with  the 
debt. 

Twelve  dollars  allowed  to  executors,  as  a  fee  paid  to  an  attorney  for  stating  and 
preparing  their  accounts,  but  nothing  beyond  that  for  advice  as  to  the  mode  of 
stating  it. 

This  was  an  appeal  by  Joseph  Pusey,  from  the  Orphans'  Court 
of  the  city  and  county  of  Philadelphia,  on  the  settlement  of  the  ac- 
count of  Joseph  Clemson,  one  of  the  executors  of  his  brother  James 
Clemson,  deceased.  James  Clemson,  by  his  will,  made  the  20th 
December,  1813,  appointed  four  executors :  namely,  his  brother 
Joseph  Clemson,  the  appellee,  Ellis  Davis,  Charles  Bird,  and  Jacob 
S.  Wain.  Davis  and  Bird,  renounced  the  executorship  :  Joseph 
Clemson  and  Jacob  S.  Wain  acted,  and  settled  separate  accounts. 
Joseph  Pusey,  the  appellant,  was  one  of  eight  persons  who  were 
the  residuary  devisees  of  the  testator. 

On  the  appeal  to  this  court,  the  appellant  filed  fourteen  excep- 
tions to  the  account  settled  by  the  appellee :  but  in  the  course  of 
the  argument,  the  6th,  8th,  9th,  11th,  and  13th,  were  relinquished, 
and  the  remainder  insisted  upon,  viz: 

1st.  The  said  executor  has  not  charged  himself  with  the  sum  of 
500  dollars,  with  interest  thereon,  being  the  amount  of  a  draft  of 
said  Joseph  Clemson,  dated  16th  December,  1809,  held  by  the  tes- 
tator at  the  time  of  his  death,  and  due  to  him  by  the  said  JosejJt 
Clemson. 

2d.  The  said  executor  has  charged  the  said  estate  with  com- 
missions at  five  per  cent,  on  the  sum  of  10,690  dollars  49  cents; 
whereas,  the  said  commissions  should  not  have  been  charged  at  so 
high  a  rate. 

3d.  The  said  executor  has  charged  the  said  estate  with  commis- 
sions at  five  per  cent,  on  the  sum  of  56,138  dollars  89  cents,  re- 
ceived by  Jacob  S.  Wain,  his  co-executor,  amounting  to  2,806  dol- 
lars 94  cents,  of  which  the  said  Joseph  Clemson  claims  one  half 
for  himself.  Whereas  the  services,  if  any,  were  performed  by  the 
said  Jacob  S.  Wain,  who  has  charged  the  said  estate  with  the  said 


Dec.  1822.]  OF  PENNSYLVANIA.  205 

(Pusey,  Appellant  v.  Clemson,  Appellee.) 

sum  of  2,806  dollars  94  cents,  in  the  settlement  of  his  account,  and 
claims  the  said  sum  as  belonging  to  himself. 

4th.  The  said  executor  has  charged  the  estate  in  his  account, 
No.  2,  with  commissions  at  five  per  cent,  on  7,444  dollars  36  cents ; 
being  not  only  too  high  a  rate  of  per  centage,  but  also,  twice 
charged  on  that  sum ;  the  executor  having  charged  a  commission 
on  it  in  his  account,  No.  1. 

5th.  The  said  executor  has  charged  the  estate  with  too  high  com- 
missions on  the  sum  of  9,625  dollars,  being  the  amount  of  sale  of 
real  estate. 

7th.  The  said  executor  has  not  charged  himself  with  interest  on 
moneys  remaining  in  his  hands,  but  has  charged  the  estate  in  his 
account,  No.  3,  with  interest  on  a  certain  legacy,  left  to  him,  as 
alleged  by  his  father. 

10th.  The  said  executor  has  not  charged  himself  with  the  amount 
of  a  mortgage  for  900  dollars  and  interest,  given  by  Flag  Bacon 
and  wife,  to  Joseph  L.  Dickerson,  the  amount  of  which  mortgage 
with  interest,  was  received  by  the  executor.  Said  mortgage  is 
stated  in  the  inventory,  filed  by  Jacob  S.  Wain,  one  of  the  execu- 
tors, as  belonging  to  the  estate. 

12th.  The  said  executor  has  not  accounted  for  the  proceeds  of 
five  shares  in  the  Harrisburg  Bridge  Company,  and  one  share  in 
the  Centre  Turnpike  Company,  and  one  share  in  the  Susquehannah 
and  York  Borough,  and  one  bond  of/.  Greenleaf,  for  1,248  dollars 
70  cents,  with  interest,  and  one  note  of  Daniel  Buckley,  for  500 
dollars,  all  of  which,  are  stated  by  the  executor,  as  being  in  his 
possession. 

14th.  The  appellant  objects  to  all  sums  charged  by  the  executor 
for  stating  his  account,  as  his  commissions  are  intended  as  a  full 
compensation  for  performing  this  and  other  services  as  executor. 

Eioing  <$f  J.  S.  Smith  for  the  appellant. 

1st  exception.  The  executor  has  not  charged  himself  with  the 
sum  of  500  dollars,  and  interest,  due  to  the  estate,  because  he  con- 
tends, that  his  appointment  as  executor,  operated  as  an  extinguish- 
ment of  the  debt.  But  though  this  be  so  at  law,  equity  will  consi- 
der him  as  a  trustee  for  the  residuary  legatee,  or  even  for  the  next, 
of  kin,  where  a  legacy  is  given  to  the  executor,  3  Gwillim's  Bac. 
Ab.  11,  12.  Executors  and  Administrators,  A.  10.  There  is,  there- 
fore, no  extinguishment  of  the  debt  in  the  present  case,  but  he  is 
bound  to  account  for  it  to  the  residuary  legatee. 

2d  and  3d  exceptions.  The  executor  charges  the  estate  with 
five  per  cent,  commission,  improperly  in  various  instances. 

It  was  here  stated  by  the  counsel  for  the  appellee,  that  it  was  the 
intent  of  Mr.  Wain  to  charge  but  one  half  of  the  five  per  cent.,  so 
that  the  two  executors  might  divide  equally,  between  them,  the 
commission  on  all  moneys  received  by  them. 

Eiving  and  J.  S??iith,  then  contended  under  this  head,  that  five 
per  cent,  was  too  high  a  charge :  it  would  make  the  commissions 


206  SUPREME  COURT  [Philadelphia, 

(Pu9ey,  Appellant  v.  Clcmson,  Appellee.) 

of  the  executors  amount  to  the  sum  of  5,655  dollars  19  cents,  be- 
sides what  will  accrue  on  debts  yet  to  be  collected  :  altogether,  ex- 
ceeding 6000  dollars.  This  is  an  unreasonable  compensation  for 
their  services,  and  burdensome  on  the  estate.  There  is  no  settled 
rule  as  to  the  commissions  to  be  allowed  to  an  executor :  it  must 
be  governed  by  the  amount  of  the  estate,  and  the  labour,  and  the 
responsibility  incurred.  In  this  estate  there  was  no  risk  run :  the 
estate  was  more  than  sufficient  to  pay  all  the  debts.  There  was 
comparatively  little  trouble  :  there  were  4000  dollars  in  bank,  and 
in  several  suits,  large  sums  of  money  were  recovered.  The  exe- 
cutor has  charged  the  estate  besides,  with  expenses  in  going  from 
home  on  business  concerning  it.  Some  of  the  property  was  sold 
at  Long  Island  by  an  administrator,  who  recovered  the  money, 
and  paid  it  over  to  the  attorney  for  the  residuary  devisees.  The 
amount  of  commission  not  being  fixed  by  any  rule,  rests  on  the 
sound  discretion  of  the  court,  and  we  contend,  that  too  large  a 
sum  has  been  allowed,  considering  the  amount  of  the  estate,  and 
the  services  required  of  the  executors. 

4th  exception.  This  is  founded  on  a  plain  mistake  committed  by 
the  executor,  in  charging  in  his  first  account,  a  commission  on  his 
whole  receipts,  and  stating  a  balance  against  him,  and  afterwards, 
in  a  second  account,  charging  a  commission  again  on  the  same 
balance. 

5th  exception.  There  was  a  sale  of  lands  for  9,655  dollars,  and 
the  commission  charged,  is  five  per  cent.,  which  was  too  much.  It 
does  not  appear  that  this  money  ever  went  through  the  hands  of 
the  executors.  It  was  paid  into  bank,  and  drawn  out  by  the  diffe- 
rent heirs,  on  the  checks  of  the  executors.  But  they  had  no  right 
to  receive  it  as  executors.  In  fact,  as  there  was  no  intestacy,  the 
Orphans'  Court  had  no  power  to  order  a  sale. 

7th  exception.  The  executor  having  money  in  his  hands,  ought 
not  to  be  permitted  to  charge  interest  on  a  legacy  due  to  him  un- 
der his  father's  will. 

10th  exception.  On  this  exception  it  appeared  in  evidence,  from 
a  deposition,  that  the  amount  of  Bacon's  mortgage  had  not  been 
received  ;  that  it  was  defective  in  consequence  of  not  being  record- 
ed by  the  testator  in  his  life  time :  that  the  executors  had  made 
endeavours  to  recover  the  money,  but  had  failed  to  do  so  :  and  that 
in  consequence  of  the  insolvency  of  the  debtor,  they  made  a  com- 
promise, under  which  they  obtained  for  the  estate,  some  real  pro- 
perty in  the  Northern  Liberties. 

On  this  evidence,  the  counsel  for  the  appellant  contended,  that  it 
was  owing  to  the  remissness  of  the  executors,  that  the  money  due 
on  this  mortgage  was  not  obtained. 

12th  exception.  On  this  head  no  difficulty  will  be  made,  if  the 
executors  are  willing  to  account  for  the  certificates. 

13th  exception.  The  question  here  is,  whether  the  executors  are 
to  be  allowed  the  charge  of  fees  to  counsel,  for  advice  in  stating 


Dec.  1822.]  OF  PENNSYLVANIA.  207 

(Pusey,  Appellant  v.  Clemson,  Appellee.) 

his  account.  We  do  not  object  to  12  dollars,  allowed  as  a  compen- 
sation to  counsel  for  stating  the  account.  Advice  relative  to  stating 
the  account,  is  the  executor's  own  business,  not  the  business  of  the 
estate,  and  is  compensated  by  the  commission  he  receives.  It  is  a 
matter  between  him  and  the  estate,  and  not  a  business  of  the  estate. 
For  the  latter,  many  allowances  are  made  for  counsel's  fees  in  these 
accounts,  and  not  objected  to. 

P.  A.  Broivn  and  Binney  contra. 

1st  exception.  The  court  ought  not  in  this  way,  to  decide  on  this 
objection,  but  to  leave  it  open  to  a  suit  at  law.  If  the  court  do  de- 
cide, they  must  decide  it  as  a  court  of  law,  and  not  as  a  court  of 
equity:  in  which  case  it  is  clearly  extinguished.  RoWs  Ab.  920, 
921.  2  Bl.  Comm.  511.  Co.  Lit.  264.  1  Salk,  299.  Sir  W. 
Jones,  345.    Hob.  10.     Thomas  v.  Thomson,  2  Johns.  421. 

2d,  3d,  4th,  and  5th  exceptions.  The  question  as  to  the  amount 
of  commissions  proper  to  be  allowed  to  executors,  is  a  difficult  one, 
much  contested,  and  on  which  there  is  no  standard  to  refer  to.  In 
deciding  it,  regard  should  be  paid  to  custom,  because  executors  and 
administrators  expect  what  is  usually  allowed,  and  are  induced  by 
that  expectation  to  undertake  the  trust.  The  general  rule  in  Phi- 
ladelphia, has  been,  to  allow  five  per  cent.  The  records  of  the 
Orphans'  Court,  from  1813  to  1821,  have  been  searched  with  a 
view  to  this  point,  and  436  accounts  in  all,  have  been  examined. 
In  these,  less  than  five  per  cent  is  allowed  in  40  cases :  in  394  cases, 
five  per  cent,  or  more.  So  that  nine  tenths  of  the  accounts  have 
passed  with  an  allowance  of  five  per  cent.  This  is  sufficient  to  con- 
stitute a  general  rule,  which  ought  not  to  be  departed  from  without 
particular  reasons.  In  this  particular  case,  the  testator  had  some- 
what more  than  4000  dollars  in  bank:  the  rest  of  his  personal  estate 
consisted  of  bonds,  notes,  &c.  He  had  some  mortgages,  all  of  which 
were  in  dispute.  A  very  considerable  portion  of  the  estate,  amount- 
ing to  37000  dollars,  was  collected  by  suit :  a  considerable  part 
of  which,  has  been  paid  by  the  executors,  namely,  27000  dollars, 
after  suit :  and  they  have  successfully  defended  several  suits.  Not 
less  than  fifteen  suits  were  instituted  by  and  against  them.  There 
was  business  in  several  states,  and  they  made  a  voyage,  by  sea,  to 
Moose  Island,  and  journeyed  back  by  land.  The  responsibility  of 
executors  is  a  very  serious  consideration :  a  mistake  in  judgment, 
might  make  them  liable  to  the  residuary  devisees.  As  to  the  com- 
mission on  land  sold  by  order  of  the  Orphans'  Court,  there  is  no 
reason  why  it  should  be  less  than  five  per  cent. 

7th  exception.  We  grant,  that  if  the  executor  had  money  in  his 
hands,  he  had  no  right  to  charge  interest  on  the  legacy. 

10th  exception.  The  first  security  proved  bad,  and  an  attempt 
was  made  by  the  executors  to  change  it  for  a  better.  It  was  done 
with  the  advice  of  counsel:  and  though  it  miscarried,  it  was 
done  with  a  view  to  the  benefit  of  the  estate.  Where  oxecutors  act 


208  SUPREME  COURT  [Philadelphia, 

(Puscy,  Appellant  v.  Clemson,  Appellee.) 

with  due  diligence,  and  with  honest  intentions,  they  are  not  re- 
sponsible for  accidental  losses.  In  Blue  v.  Marshall,  3  P.  Wms. 
387.,  the  administrator  released  the  arrears  of  rent  to  an  insolvent 
tenant,  [who,  in  consideration  thereof,  gave  up  his  lease :  yet  it 
being  done  for  the  benefit  of  the  estate,  he  was  held  not  chargeable 
with  the  arrears.  In  7  Johns.  411.,  the  same  principle  is  decided. 
In  the  People  v.  Pleas,  the  case  of  Blue  v.  Marshall,  is  cited  and  re- 
cognised. In  Thomson  v.  Brown,  4  Johns.  Ch.  625,  it  is  said,  that 
trustees  acting  bona  fide,  are  always  favoured.  If  the  court  have 
doubts  as  to  the  propriety  and  fairness  of  the  executor's  conduct,  it 
would  be  proper  to  direct  an  issue  to  determine  it. 

12th  exception.  We  have  the  stock  in  specie  ready  to  deliver 
up. 

14th  exception.  It  is  as  proper  that  an  executor  should  be  al- 
lowed for  money  paid  for  advice  in  stating  the  account,  as  for  ac- 
tually stating  it.  He  is  not  supposed  to  be  sufficiently  conversant 
in  the  law,  to  enable  him  to  make  up  the  account  safely,  without 
legal  assistance.  It  is  in  the  execution  of  the  trust :  an  indispen- 
sable branch  of  it :  and,  we  conceive,  a  proper  item  of  charge. 

The  opinion  of  the  court  was  delivered  by 

Tilghman  C.  J.  This  is  an  appeal  from  the  Orphans'  Court, 
on  the  settlement  of  the  account  of  Joseph  Clemson,  one  of  the  ex- 
ecutors of  his  brother  James  Clemson,  deceased.  James  Clemson 
appointed  four  executors,  viz.  his  brother  Joseph  Clemson,  Ellis 
Davis,  Charles  Bird,  and  Jacob  S.  Wain.  Davis  and  Bird  re- 
nounced, and  Joseph  Clemson  and  Jacob  S.  Wain,  acted,  and  settled 
separate  accounts.  Joseph  Pusey,  the  appellant,  is  one  of  the  resi- 
duary devisees  of  James  Clemson,  the  testator.  Fourteen  excep- 
tions were  taken  to  the  settlement  of  the  account  in  question,  of 
which  the  6th,  8th,  9th,  11th,  and  13th,  have  been  relinquished. 
All  the  others  the  appellant  has  endeavoured  to  support. 

1.  The  appellee  has  not  charged  himself  with  a  debt  of  500  dol- 
lars, and  the  interest  thereon,  which  he  acknowledges  to  have  been 
due  from  him  to  the  testator,  because  he  supposes  that  the  debt 
was  extinguished  by  the  appointment  of  him  as  an  executor.  In 
this  he  is  clearly  mistaken.  When  a  debtor  is  appointed  executor, 
the  debt  is  extinguished  in  law,  because  he  cannot  bring  suit 
against  himself.  But  it  is  assets,  and  as  such,  he  is  accountable 
for  it  to  creditors.  And  where,  as  in  this  case,  the  testator  has 
devised  the  residue  of  his  estate  to  others,  the  executor  is  consi- 
dered in  equity,  as  a  trustee  for  the  residuary  devisee,  to  the 
amount  of  the  debt  due  from  him.  The  case  has  been  carried  even 
further.  For  where  the  testator  gave  legacies  to  his  brother  and 
nephew  who  were  indebted  to  him  in  different  sums,  and  appoint- 
ed them  executors  of  his  will,  and  made  no  disposition  of  the  resi- 
due, these  debts  were  declared  to  be  a  trust  for  the  next  of  kin,  the 


Dec.  1822.]  OF   PENNSYLVANIA.  209 

(Pusey,  Appellant  v.  Clemson,  Appellee.) 

Lord  Chancellor  observing,  "  that  he  thought  it  a  settled  point  in 
the  Court  of  Chancery,  that  the  appointment  of  the  debtor  execu- 
tor, was  no  more  than  parting  with  the  action."  Bac.  Jib.  Jlppen. 
vol.  1  p.  533,  a.  JVb.^,10.  Joseph  Clemson  must  therefore  be  charged 
with  this  debt  and  interest. 

The  2d,  3d,  4th,  and  5th  exceptions,  are  to  the  allowance  of 
a  commission  of  5  per  cent,  to  the  executor,  on  the  whole  amount 
of  the  money  received  by  him.     The  4th  exception  is  admitted  to 
be  good,  as  it  points  out  a  palpable  error  in  the  charge  of  commis- 
sion, and   shows  what  little  consideration  this  account  must  have 
undergone  in  the  Orphans'  Court.     The  executor  settled  two  ac- 
counts.    In  the  first,  he  was  allowed  a  commission  of  5  per  cent 
on  his  whole  receipts,  and  a  balance  of  upwards  of  5000  dollars, 
which  appeared  against  him,  was  carried  to  his  second  account.    In 
this  second  account,  in  which  the  estate  was  credited  with  the  ba- 
lance of  the  first,  the  executor  was  allowed  a  commission  of  5  per 
cent,  on  the  balance,  as  if  it  had  been  money  received  by  him. 
This  was  a  plain  oversight  both  in  the  accountant  and  the  court, 
and  must  now  be  rectified.     The  other  three  exceptions  to  the  al- 
lowance of  5  per  cent,  commission,  require  very  serious  considera- 
tion.    It  is  a  subject  on  which  there  has  been  great  difference  of 
opinion.      And  it  is  no  wonder :  for  the  law  has  fixed  no   certain 
compensation,  nor  is  it  possible  for  the  court  to  establish  a  rate 
of  commission  which  shall   do  justice  in  ^all  cases.     An  executor 
should  receive  a  compensation  adequate  to  his  care  and  trouble, 
besides   a   liberal  allowance  for   all   necessary   expenses.     But  it 
would  be  debasing  the  sanctity  of  the  trust,  to  consider  it  as  an 
office  of  profit.     It  is    an    honourable    duty,  which   ought  not  be 
undertaken  from  motives  of  mere  gain.     Still,  it  is  not  to  be  ex- 
pected, that  executors  should  sacrifice  their  time,  and  subject  them- 
selves to  hazard,  without  some  remuneration.     But  the  difficulty  is 
in  fixing  the  quantum.     It  is  very  desirable,  both  for  the   sake  of 
the  executors,  and  the  family  of  the  testator,  that  there  should  be 
some   standard  to  which  both  may  look,  on  the   subject  of  com- 
missions.    And  in  the   cases  which  generally  occur,  it  appears  to 
me,  after  considerable  research,  that  the   common  opinion  and  un- 
derstanding of  this   country,  has  fixed  upon  5  per  cent,  as  a  rea- 
sonable allowance.    But  to  this  rule  there  must  be  exceptions.    There 
are  estates,  where  the  total  amount  is  small,  and  that  too,  collected 
in  driblets.     In   such,  5  per  cent,  would  be  insufficient.     On  the 
contrary,  there   are  others,  where  the   total  being  very  large,  and 
made  up  of  sums  collected  and  paid  away  in  large  masses,  5  per  cent, 
would  be  too  much.     It  must  be  left  to  the  discretion  of  the  courts, 
to  ascertain  those  cases  in  which  the  general  rule  should  be  departed 
from.     The  personal  care  and  anxiety  of  the  executor,  is  a  fair  sub- 
ject of  consideration.     An  estate  not  equal   to  the  payment  of  its 
debts,  is  always  attended  with  hazard,  which  should  not  be  forgot- 
ten in  fixing  the  compensation.     I  have  carefully  examined  the  ac- 

vol.  ix.  2D 


210  SUPREME  COURT  [Philadelphia, 

(Puscy,  Appellant  v.  Clcmson,  Appellee.) 

count  on  which  the  present  dispute  arises,  and  am  of  opinion,  that 
it  should  be  considered  as  an  excepted  case.  In  order  to  explain  the 
reasons  on  which  this  opinion  is  founded,  I  shall  consider  the  sepa- 
rate accounts  of  the  two  executors,  as  one.  On  the  subject  of  com- 
missions, there  is  no  difference  between  them.  Both  depend  on  the 
same  principles;  and  I  understand,  that  the  executors  themselves 
consider  the  aggregate  of  the  commission  in  both  accounts,  as  a 
whole,  to  be  equally  divided  between  them.  In  the  first  place 
then,  we  perceive  an  estate,  which  at  a  round  sum;  may  be  called 
100,000  dollars.  In  the  next  place,  there  was  no  hazard  of  a  de- 
vastavit from  misapplication  of  assets,  through  ignorance  of  the 
law;  the  estate  being  much  more  than  equal  to  the  debts  of  the  tes- 
tator. There  have  been  law  suits  in  which  large  sums  have  been 
recovered.  But  the  trouble  has  fallen  principally  on  the  counsel 
employed  for  the  executors,  for  whose  reward,  a  very  liberal  al- 
lowance has  been  made.  All  the  expenses  of  the  executors  have 
also  been  paid,  over  and  above  their  commissions.  But  what 
weighs  most  with  me,  is  the  manner  in  which  the  money  came  to 
the  hands  of  the  executors.  In  order  to  show  that  the  trouble  was 
remarkably  little,  I  must  enter  into  some  detail.  Joseph  Clemson 
reserved  about  12,400  dollars,  of  which  about  9,400  consisted  only 
of  five  items.  He  took  goods  of  the  estate  at  the  appraised  value, 
amounting  to  about  500  dollars,  and  recieved  the  residue  of  the 
9,400  dollars,  in  four  payments,  each  of  which  was  above  1200 
dollars,  and  one  of  them  4,925  dollars.  In  looking  into  Jacob  S, 
Wain's  accounts,  we  find,  that  in  his  first  account,  amounting  to 
58,000  dollars,  and  upwards,  he  recieved  more  than  49,000  dollars 
in  large  payments.  There  were  four  payments,  of  between  1,500 
and  3,000  dollars  each,  six  of  between  4  and  8,000  each,  and  one 
of  10,000  dollars.  In  his  second  account,  amounting  to  35,000 
dollars,  and  upwards,  the  receipts  are  likewise  in  sums  uncom- 
monly large.  There  are  other  circumstances  against  a  large  com- 
mission in  this  case.  There  was  a  sale  of  real  estate,  which  cost 
but  little  trouble  to  the  executors,  and  a  remittance  to  them  of  the 
proceeds  of  a  mortgage  in  New  York,  which  cost  still  less.  More- 
over, the  estate  has  been  burdened  with  very  considerable  sums 
paid  to  agents  and  attorneys  who  have  had  all  the  trouble  of  col- 
lecting lanje  debts,  and  the  executors  have  in  some  instances  had 
little  to  do  but  to  recieve  the  money.  Such  accounts  occur  but  very 
rarely.  If  in  general,  5  per  cent,  may  be  deemed  a  reasonable  al- 
lowance, it  certainly  cannot  be  so  here.  Considering  all  circum- 
stances, it  appears  to  me,  that  3  per  cent,  would  be  quite  sufficient, 
and  that  is  the  rate  at  which  I  am  of  opinion  it  should  be  fixed. 

7,  The  7th  exception  is,  "  that  the  executor  has  not  charged 
himself  with  interest  on  moneys  remaining  in  his  hands,  but  has 
charged  the  estate  with  interest  on  a  certain  legacy,  left  to  him,  as 
he  alleges,  by  his  father's  will."  If  the  fact  be  so,  it  is  an  error 
which  must  be  corrected.  The  accounts  must  be  examined,  before 
pip*  decree  is  drawn  up,  and  this  exception  will  then  be  attended  to? 


Dec.  1822.]  OF  PENNSYLVANIA.  211 

(Pusey,  Appellant  v.  Clemson,  Appellee.) 

10.  The  10th  exception  is,  "that  the  executor  has  not  charged 
himself  with  the  amount  of  the  mortgage  for  900  dollars,  and  in- 
terest, given  by  Flag  Bacon  and  wife,  to  Joseph  L.  Dickerson, 
the  amount  of  which  mortgage,  with  interest,  was  received  by  the 
executor.*'  The  appellant  has  not  made  good  his  assertion,  that 
this  money  was  received  by  the  executor.  Nothing  like  it  has 
been  proved.  On  the  contrary,  it  is  evident,  that  it  has  not  been 
received,  and  the  appellant  has  shifted  his  ground,  and  endeavoured 
to  throw  the  burden  of  this  debt  on  the  executors,  on  account  of 
their  negligence.  But  the  charge  of  negligence  has  not  been  proved 
to  the  satisfaction  of  the  court.  It  appears  that  the  mortgage  was 
defective  for  want  of  being  recorded  ;  and  this  defect  existed  in 
the  life  of  the  testator.  In  that  respect  there  is  nothing  to  blame  in 
the  conduct  of  the  executors.  It  appears  too,  that  pains  have 
been  taken  to  recover  the  money,  but  without  success.  And 
finally  the  executors  despairing  of  a  recovery,  by  reason  of  the 
insolvency  of  the  debtors,  made  a  compromise  to  the  best  of  their 
judgment,  by  which  they  have  secured  to  the  estate  of  the  testa- 
tor, some  real  estate  in  the  Northern  Liber-ties  of  Philadelphia.  If 
the  compromise  was  intended  for  the  benefit  of  the  estate,  and  has 
actually  been  for  its  benefit,  (and  from  the  evidence,  I  incline  to 
think  that  such  was  the  case,)  the  executor  ought  not  to  be  charged 
With  the  debt.  This  principle  has  been  sanctioned  in  Chancery, 
in  the  case  of  Blue  v.  Marshall,  3.  P.  Wms*  381.,  and  The  People 
v.  Pleas,  <5'C.  2  Johns.  Cas.  378.  I  am  of  opinion,  therefore,  that 
this  exception  has  not  been  supported. 

12.  The  12th  exception  relates  to  sundry  shares  in  the  Harris- 
burg  Bridge  Company,  Centre  Turnpike  Company,  and  Susque- 
hannah  and  York  Turnpike  Company.  There  is  no  dispute  on  the 
subject  of  this  exception.  The  executors  acknowledge  that  they 
have  the  certificates  for  these  shares,  and  are  willing  to  account 
for  them. 

14.  The  14th  and  last  exception  is,  to  the  sum  charged  by  the 
executors  for  fees  paid  to  counsel  for  advice  as  to  the  mode  of 
stating  the  account.  There  is  no  objection  to  the  charge  of  twelve 
dollars,  paid  to  an  attorney  for  stating  and  preparing  the  account. 
Whoever  examines  the  account  will. find,  that  very  liberal  allow- 
ances have  been  made  to  the  executor,  for  fees  paid  to  counsel,  on 
the  business  of  the  estate.  As  to  staling  the  account  which  is  to  be 
«■.  exhibited  to  the  Register  of  wills,  it  lias  been  usual  to  make  a  small 
allowance  to  the  executor,  because  he  is  not  supposed  to  be  con- 
versant of  the  form  in  which  it  is  to  be  drawn.  But  he  may  want 
advice  for  his  own  satisfaction,  which  may  not  be  for  the  benefit 
of  the  estate,  and  with  which  therefore  the  estate  ought  not  to  be 
burdened.  I  have  known  many  instances,  where  executors  have 
endeavoured  to  avail  themselves  of  the  advice  of  counsel,  for  their 
own  benefit,  and  to  the  prejudice  of  the  estate.  In  the  present  in- 
stance, I  think  twelve  dollars  sufficient  for  any  assistance  of  which 


212  SUPREME  COURT  [Philadelphia, 

(Puscy,  Appellant  v.  Clemson,  Appellee.) 

the  executor  was  in  need,  in  stating  the  account.     Beyond  that  sum, 
therefore,  the  exception  is  allowed. 

These  are  the  principles,  on  which  the  court  will  decree  in  this 
cause,  and  the  account  must  he  rectified  so  as  to  be  conformable 
to  them. 


[Philadelphia  Feb.  10,  1823.] 

HAMPTON  against  SPECKENAGLE. 

IN  ERROR. 

In  an  action  by  the  vendor  for  non-performance  by  the  vendee  of  a  contract  to  pur- 
chase real  estate,  the  vendor  in  making-  out  his  title,  cannot  give  in  evidence,  a 
Sheriff's  deed,  without  showing-  the  judgment  and  execution. 

An  exemplification  of  proceedings  in  the  Orphans'  Court,  to  value  and  make  parti- 
tion  of  real  estate  is  not  evidence,  unless  the  whole  record  is  exemplified. 

If  before  the  day  for  accepting  the  deed  under  a  contract  of  sale,  the  vendee  deny 
that  he  had  made  the  purchase,  and  makes  no  other  objection,  that  dispenses  with 
the  necessity  of  the  tender  of  a  deed  by  the  vendor  on  the  day. 

But  though  before  the  day,  the  vendee  deny  that  he  had  made  the  purchase,  yet  if 
the  land  is  subject  to  incumbrances  not  declared  at  the  time  of  the  sale,  the  vendor 
must  satisfy  the  jury  beyond  a  doubt,  that  he  could  and  would  have  removed  the 
incumbrances,  or  he  is  not  entitled  to  damages. 

If  an  agent,  employed  to  bid  for  the  vendor  at  a  public  sale  at  a  limited  price,  ex- 
ceed his  authority,  hejs  considered  as  making  the  purchase  on  his  own  account, 
and  may  be  sued  as  a  purchaser. 

A  declaration  in  assumpsit  by  a  vendor  on  a  contract  of  sale  of  real  estate,  ought  to 
state  a  positive  assumption  by  the  defendant,  and  if  the  vendor  contracted  to  make 
a  good  title,  that  he  was  seised  of  a  good  estate  in  fee  simple. 

It  seems  a  general  averment,  that  the  plaintiff  was  ready  and  willing,  and  offered  to 
perform  his  pait  of  the  contract,  is  good  after  verdict. 

Error  to  the  District  Court  for  the  city  and  county  of  Phila- 
delphia, in  assumpsit,  brought  by  the  defendant  in  error,  the  plain- 
tiff below,  William  Speckenagle  against  Alexander  Hampton,  to 
recover  damages  for  not  complying  with  an  alleged  contract  of 
sale  of  real  estate  in  Bucks  County. 

The  declaration  stated  in  the  first  account,  that  whereas  hereto- 
fore, to  wit,  on  the  first  January,  1814,  a  certain  conversation  was- 
had  and  moved  by  and  between  the  said  Alexander  and  the  said 
William,  wherein'the  said  William,  in  consideration  of  the  promise 
and  undertaking  of  the  said  Alexander,  to  pay  him  the  sum  of  3,500 
dollars  on  the  1st  April,  1817,  and  the  balance  of  the  purchase 
money  in  three  equal  annual  payments,  with  lawful  interest, 
agreed  and  undertook  to  sell  and  convey  to  the  said  Alexander,  a 
certain  house,  barn,  and  plantation  of  him  the  said  William  in 
Bristol  Township,  Buds  County,  containing  112  acres,  and  to 
give  a  good  title  and  possession  of  the  same,  on  the  said  1st  of 
April,  1817  ;  and  the  said  Alexander,  in  consideration  of  the  afore- 


Dec.  1822.]  OF  PENNSYLVANIA.  213 

(Hampton  v.  Speckenagle.) 

said  agreement  and  undertaking  of  the  said  William,  then  and 
there  undertook,  and  faithfully  promised,  to  pay  for  the  said  es- 
tate, the  sum  of  89  dollars  and  50  cents  per  acre,  whereof  3,500 
dollars  should  be  paid  on  the  1st  Jipril,  1817,  and  the  remainder 
in  three  equal  annual  payments,  with  lawful  interest,  from  the  de- 
livery of  the  deed,  with  satisfactory  security.  And  the  said  Wil- 
liam; in  fact,  saitli  that  afterwards,  to  wit,  on  the  said  1st  Jipril, 
1817,  at  the  county  aforesaid,  he  was  ready  and  willing  to  give  a 
title  and  possession  of  the  said  estate,  to  the  said  Alexander,  and 
did  then  and  there  offer  and  propose  to  the  said  Alexander,  so  to 
do,  and  was  then  and  there,  and  at  all  times,  ready  and  willing, 
(and  did  then  and  there  offer  and  propose,)  to  do,  execute,  and  per- 
form all  things  whatsoever,  which,  by  his  undertaking-  aforesaid,  he 
had  agreed  to  do,  and  did  then  and  there  perform  and  execute  the 
agreement  upon  his  part,  and  did  then  and  there  require  of  the  said 
Alexander,  the  performance  and  fulfilment  of  the  said  undertakings 
on  his  part  to  be  fulfilled,  and  especially  to  pay  to  the  said  William 
the  sum  of  3,500  dollars,  and  to  secure  the  payment  of  the  re- 
mainder, agreeably  to  his  promise  aforesaid.  But  the  said  Alex- 
ander, did  not  then  and  there  pay  the  said  sum  of  3,500  dollars,  or 
any  part  thereof,  and  did  not  then  and  there  secure  the  payment  of 
the  remainder,  and  did  not  then  and  there  perform  and  fulfil  his 
agreement  so  as  aforesaid  made,  but  did  wholly  neglect  and  re- 
fuse so  to  do.  Whereby  the  said  William  hath  been  damag-ed  to 
the  amount  of  10,000  dollars. 

The  second  count  stated,  that  whereas  also,  on  the  2Gth  of  De- 
cember 1816,  at  the  county  of  Philadelphia  aforesaid,  the  said  Wil- 
liam was  the  owner  of  a  certain  house,  barn  and  plantation,  con- 
taining 112  acres,  in  Bristol  Township,  Bucks  County,  and  then  and 
there  offered  and  proposed  to  sell  the  same  at  public  sale,  upon  the 
terms  and  conditions  following,  that  is  to  say,  the  highest  and  best 
bidder  to  be  the  purchaser,  who  must  pay  3,500  dollars  on  the  1st 
day  of  April  next,  when  a  good  title  and  possession  will  be  given  : 
the  remainder  to  be  paid  in  three  equal  annual  payments,  with  law- 
ful interest  from  the  delivery  of  the  deed,  with  satisfactory  security 
for  the  same  :  there  is  a  mortgage  on  this  place  of  1300  dollars, 
which  is  to  remain  on  the  place  during  the  life  of  widow  Broad- 
nax:  the  grain  in  the  ground  is  excepted.  And  whereas  the  same 
being  exposed  to  sale,  the  said  Alexander  did  then  and  there  be- 
come the  purchaser  of  the  said  house,  barn,  and  plantation,  he  be- 
ing the  highest  and  best  bidder  for  the  same  :  and  the  said  Alexan- 
der did  then  and  there  acknowledge  himself  the  purchaser  of  the 
above  property,  at  89  dollars  50  cents  per  acre,  agreeably  to  the 
above  conditions,  whereby  the  said  Alexander  became,  and  actually 
was  liable  to  pay  to  the  said  William,  the  sum  of  10,024  dollars, 
in  the  manner  and  proportions  above  set  forth.  And  the  said  Wil- 
liam, in  fact  suith,  that  he  was  then  and  there  ready  and  willing, 
and  did  oiler   and  propose  to  the  said  Alexander,  to  fulfil  and    per- 


214  SUPREME  COURT  [Philadelph  ia 

(Hampton  v.  Speckenaglc.) 

form  the  terms  of  his  said  agreement,  and  did  then  and  there  require 
and  demand  of  the  said  Alexander,  to  fulfil  and  perform  the  terms  of  the 
agreement  on  his  part  to  be  fulfilled,  and  performed  ;  but  the  said  Alex-1 
ander  did  not  then  and  there  perform  and  fulfil  the  agreement,  so  by 
him  undertaken,  but  wholly  and  entirely  neglected  and  refused  so  to 
do,  and  did  not  then  and  there,  to  wit,  on  the  said  1st  April,  1817, 
pay  the  sum  of  3,500  dollars  aforesaid,  and  did  not  give  then  and 
there  satisfactory  security  for  the  payment  of  the  remainder  as  afore- 
said, although  so  to  do  he  was  required  as  aforesaid,  by  the  said 
William,  to  wit,  the  day  and  year  aforesaid,  at  the  county  aforesaid, 
whereby  the  said  William  alleges  he  hath  sustained  damage  to  the 
amount  of  10,000  dollars,  and  therefore,  he  brings  suit,  <?Cc.  The 
defendant  pleaded  non  assumpsit  and  payment. 

On  the  trial,  it  appeared,  that  the  defendant  had  bid  for  the  place 
at  89  dollars  50  cents  per  acre,  and  had  signed  the  conditions  of 
sale  stated  in  the  second  count :  but  the  defence  was,  that  the  de- 
fendant had  purchased  the  property  at  that  price  as  agent  for  the 
plaintiff,  who  had  limited  the  price  of  the  farm  at  90  dollars  per 
acre,  and  procured  the  defendant  to  buy  in  the  property  for  him, 
if  it  would  not  bring  that  sum.  The  defendant  further  contended, 
that  if  he  were  liable  as  purchaser,  yet  the  plaintiff  was  not  entitled 
to  enforce  the  defendant's  performance  of  the  contract,  because  the 
plaintiff  had  not  tendered  a  deed  for  the  property  on  the  1st  April) 
1817,  and  moreover,  that  the  farm  was  incumbered  with  mortgages 
and  other  liens,  not  disclosed  at  the  sale,  exceeding  the  whole  pur- 
chase money,  so  that  the  plaintiff  could  not  have  made  a  clear  title. 
The  plaintiff  alleged  in  reply,  that  the  defendant,  before  the  1st 
April,  1817,  declared,  that  he  would  not  comply  with  his  contract, 
excused  Ahe  plaintiff  from  tendering  a  deed,  or  from  attempting  to 
clear  off  the  incumbrances. 

The  plaintiff  in  showing  his  title  to  the  land,  offered  in  evidence  a 
deed  for  the  land  from  William  Chapman,  Sheriff'  of  Bucks  County, 
dated  the  4th  February,  1793,  to  Willia7n  Broadnax  and  Timothy 
Titus,  in  fee,  reciting  two  judgments  and  writs  of  levari  facias  upon 
mortgages,  under  which  the  Sheriff  had  made  a  sale.  To  this  evi- 
dence the  defendant  objected,  because  the  judgments  and  executions 
were  not  produced.  But  the  court  overruled  the  objection,  and  ad 
mitted  the  evidence,  and  the  defendant  tendered  a  bill  of  exceptions. 

The  plaintiff  further  offered  in  evidence,  an  exemplification  from 
the  records  of  the  Orphans'  Court  of  Bucks  County,  to  show  cer- 
tain proceedings  respecting  the  valuation  and  partition  of  the  real 
estate  of  William  Broadnax,  deceased.  By  this  exemplification 
it  appeared,  that  in  pursuance  of  the  order  of  the  Court,  seven  per- 
sons had  viewed  and  valued  the  real  estate  of  William  Broadnax, 
and  divided  it  among  his  heirs,  and  that  their  proceedings  being  re- 
turned -to  the  court,  were   by  them  confirmed.     But  it   did  not  set 


Dec.  1822.]  OF  PENNSYLVANIA.  215 

(Hampton  v.  Speckenagle.) 

forth  any  petition  or  statement  of  facts,  on  which  these  proceedings 
were  had.  The  defendants  objected  to  this  evidence,  but  the  court 
admitted  it,  and  sealed  another  bill  of  exceptions. 

The  third  bill  of  exceptions  was  taken  by  the  defendant  to  the 
answers  of  the  court  to  certain  points,  on  which  they  were  requested 
to  charge  the  jury,  which  were  as  follows : 

1st,  That  the  plaintiff  in  this  case  cannot  recover,  inasmuch  as 
he  never  executed  or  tendered,  or  offered  to  tender  a  deed  to  the 
defendant  for  the  property,  for  the  alleged  breach  of  contract  of  sale 
of  which  this  suit  is  brought. 

Answer  of  the  court.  The  tender  of  a  deed  by  the  plaintiff,  was 
not  necessary  in  this  case,  as  the  action  was  not  brought  for  the 
purchase  money,  but  for  the  non-performance  of  the  contract  by 
the  defendant ;  and  the  defendant,  upon  the  evidence,  if  credited  by 
the  jury,  had  refused  to  take  the  purchase,  or  comply  with  his  con- 
tract, before  the  day  limited  for  making  the  title,  and  delivery  of 
possession. 

2d,  That  the  defendant  was  not  bound  to  complete  his  contract, 
and  take  the  property,  from  the  circumstance  of  the  incumbrances 
existing  unsatisfied  on  the  property  before,  at,  and  after  the  time 
the  deed  was  to  be  completed  ;  and  that  under  such  circumstances, 
no  action  can  be  maintained  for  the  breech  of  the  contract  of  sale. 

3d,  That  inasmuch  as  there  were  existing  incumbrances,  on  the 
property,  not  mentioned  in  the  conditions  of  sale,  the  defendant  was 
not  bound  to  take  the  property  at  all ;  and  that  the  circumstance 
contended  for  by  the  plaintiff,  that  the  defendant  did  not  object  to 
the  incumbrances  at  the  time  the  contract  was  to  be  completed,  does 
not  at  all  alter  the  law  in  this  case. 

Answer  of  the  court.  The  incumbrances  were  not  the  cause  as- 
signed by  the  defendant  for  his  refusal  to  perform  the  "contract  on 
his  part,  nor  made  the  ground  of  objection  ;  and  he  had  upon  the 
evidence,  if  credited  by  the  jury,  refused  to  take  the  purchase  be- 
fore the  time  limited  for  making  the.  deeds  and  discharging  the  in- 
cumbrances. 

4th,  That  if  the  defendant  acted  as  agent  of  the  plaintiff  in  this 
case,  and  exceeded  his  authority,  the  plaintiff  has  mistaken  his  re- 
medy, and  this  action  cannot  be  maintained. 

bth,  That  the  jury  must  be  satisfied  from  the  evidence,  that  the 
defendant  exceeded  his  authority,  in  order  to  render  him  liable  to 
an  action. 

Ansiver.  This  action  is  not  against  the  defendant  as  agent  of  the 
plaintiff.  If  it  appears  to  the  jury  that  he  was  the  agent  of  the 
plaintiff,  and  acted  within  his  authority,  the  plaintiff  cannot  sustain 
his  suit. 

King. and  T.  Sergeant,  for  the  plaintiff  in  error. 

ls^  bill  of  exceptions.  The  sheriff's  deed  is  not  evidence  with- 
out producing  the  judgment  and  execution.  The  sheriff  is  a  mere 
agent,  and  his  authority  must  be  shown.     This  principle  has  often 


216  SUPREME  COURT  [PJrihdelphia, 

(Hampton  v.  Spcckcnaglc.) 

been  decided  in  this  court  in  ejectment.  Wilson  v.  JWVeagh,  2 
Yeates,  16.  Weyand  v.  Tip/on,  5  Serg.  £f  Rawle,  382.  Por- 
ter v.  Neelimd,  4  Yeates,  109.  In  Burke's  lessee  v.  Ryan,  1  Dall. 
84.,  the  court  allowed  the  deed  to  be  read  without  such  evidence  : 
but  there  possession  had  gone  with  the  deed  for  more  than  twenty 
years  :  whereas  in  the  present  case,  the  sheriff's  deed  was  not 
eighteen  years  old.  Strictly  speaking",  a  deed,  in  order  to  be  read 
without  proof,  should,  like  a  will,  be  thirty  years  old.  Shatter  v. 
Brand,  6  Binn/  435.  At  the  expiration  of  that  period,  persons  at 
the  age  of  eighteen  are  presumed  to  be  all  dead,  so  that  the  execu- 
tion cannot  be  proved,  as  the  calculation  of  life  is  that  a  person  of 
the  age  of  eighteen  will  live  thirty  years  and  one  month.  Price  on 
Annuities,  327.  But  even  if  considered  as  proved,  still  the  objection 
remains,  that  it  was  executed  without  authority,  and  that  cannot  be 
presumed,  as  it  is  matter  of  record,  and  within  a  comparatively 
recent  period. 

2d  bill  of  exceptions.  The  exemplification  produced  was  only 
part  of  the  record  of  the  Orphans'  Court,  and  the  whole  ought  to 
have  been  produced.  When  records  are  exemplified,  the  whole 
in  general,  must  be  exemplified  ;  for  the  construction  is  to  be  taken 
from  a  view  of  the  whole  together.  Phill.  Ev.  290.  Gilb.  Ev. 
17.  3  Inst.  173.  This  record  shows  no  petition  to  the  court,  no 
consent  of  parties  tcrthe  appointment  of  appraisers,  no  order  of  court 
for  their  proceedings,  otherwise  than  by  their  own  recital.  If  the 
Orphans'  Court  act  without  authority,  their  decree  is  void,  and 
may  be  taken  advantage  of  collaterally.  Messinger  v.  Kitner,  4 
Binn.  97.  This  renders  it  more  particularly  requisite,  that  the 
whole  record  should  be  exemplified,  so  that  it  may  appear  that 
they  have  not  exceeded  their  jurisdiction. 

3d  bill  of  exceptions  to  the  charge  of  the  court. 

1.  The  court  below  erred  in  their  answer  on  the  first  point  pro- 
posed by  the  plaintiff's  counsel.  The  court  say,  that  the  plaintiff 
was  not  bound  to  prove  a  tender  of  a  deed,  because  the  action  was 
not  brought  for  the  purchase  money,  but  for  non-performance  of  the 
contract,  and  because  the  defendant  had  refused  to  take  the 
purchase  or  comply  with  his  contract,  before  the  day.  These  reasons 
are  insufficient.  An  action  for  the  purchase  money  is  an  action  for 
the  non-performance  of  contract :  and  in  both,  the  plaintiff  is  bound 
to^show,  that  he  did  all  that  was  incumbent  on  him  to  do,  before 
lie  can  recover.  Here,  he  was  hound  to  make  a  title:  that  was 
a  previous,  or  at  any  rate  a  concurrent  act  with  the  payment  of 
the  purchase  money  :  and,  therefore,  he  is  bound  to  show  that  ho 
made  a  title  as  far  as  it  was  in  his  power.  2  Phill.  Ev.  64.  Zer- 
ger  v.  Sailor,  2  Binn.  21.  Indeed  this  was  emphatically  an  .ac- 
tion for  the  purchase  money.  The  declaration  does  not  aver  any 
resale  :  it  demands  the  whole  purchase  money.  The  defendant's 
refusal  before  the  day  cannot  be  taken  advantage  of  by  the  plaintiff; 
because  the  declaration  avers  performance,  or  an    oiler  to  perform. 


Dec.  1822.]  OF  PENNSYLVANIA.  217 

(Hampton  v.  Speckenagle.) 

If  the  plaintiff  relied  on  a  discharge  before  the  day,  the  declaration 
should  have  specially  stated  such  discharge,  as  was  done  in  Jones  v. 
Barclay,  Doug.  684.  2  Phill.  Ev.  82.  In  Jordan  v.  Cooper ',  3 
Serg.  8f  Rawle,  564,  the  court  held,  that  if  the  declaration  averred 
a  performance  on  the  first  of  May,  proof  could  not  be  given  of  a 
waiver  of  that  day  by  the  defendant,  and  acceptance  at  a  subsequent 
day,  but  the  declaration  should  have  been  specially  drawn  accord- 
ing to  the  fact. 

2,  and  3.  The  court  erred  in  their  answers  to  the  second  and 
third  points  proposed.  By  the  terms  of  sale,  the  plaintiff  was 
bound  to  make  a  clear  and  indefeasible  title,  free  from  all  incum- 
brances, except  the  one  mentioned,  tje  avers  in  his  declaration, 
that  he  was  ready  and  willing  to  do  so,  and  even  if  the  defendant 
before  the  day  denied  the  purchase,  that  does  not  exempt  the  plain- 
tiff from  the  obligation  of  showing  that  he  could  have  complied 
with  his  contract.  A  purchaser  has  a  right  to  refuse  an  incumbered 
title  :  and  if  the  plaintiff's  title  was  not  clear,  he  has  sustained  no 
damage  by  such  refusal.  It  is  immaterial  whether  the  purchaser 
assigned  the  incumbrances  as  a  reason  for  refusing  or  not :  it  was 
indispensable  for  the  plaintiff  to  make  out,  that  the  title  was  clear, 
before  he  could  put  the  defendant  in  the  wrong.  In  Judson  v. 
Wass,  11  Johns.  525,  in  an  action  for  the  non-payment  of  the  first 
instalment  on  a  contract  for  the  sale  of  land,  where  the  plaintiff 
had  covenanted  to  make  a  title,  it  was  held  that  the  execution  of 
a  deed  by  the  plaintiff,  and  the  payment  by  the  defendant,  were 
simultaneous  acts,  and  that  the  plaintiff  was  bound  to  show  he 
had  a  good  title,  and,  therefore,  could  not  recover,  it  being  proved 
the  land  was  subject  to  a  prior  mortgage.  In  Tucker  v.  Woods, 
12  Johns.  180,  which  was  an  action  to  recover  damages  for  non- 
performance of  a  contract  by  the  defendant  to  sell  land  to  the  plain- 
tiff, part  of  the  bargain  was,  that  the  plaintiff  should  convey  cer- 
tain land  to  the  defendant  in  part  payment;  it  was  proved  that 
the  land  to  be  conveyed  by  the  plaintiff  was  under  lease,  and  there- 
fore he  could  not  make  a  good  title ;  it  was  held  that  the  plaintiff 
could  not  recover.  And  in  that  case,  the  defendant  did  not  ob- 
ject, when  the  plaintiff  offered  to  convey,  that  the  land  was  under 
lease,  but  said  he  had  changed  his  mind,  and  would  not  perform 
the  contract,  and  the  plaintiff  might  seek  his  remedy.  So  it  is  laid 
down  in  2  Phill.  Ev.  64.,  that  in  assumpsit  on  sale  of  real  property, 
the  defendant  may  show  a  defect  of  title  in  the  vendor,  and  on  that 
ground  rescind  the  contract ;  as  where  the  vendor  had  an  interest  in 
the  premises  for  a  shorter  time  than  he  contracted  to  sell,  or  where 
the  premises  are  subject  to  an  incumbrance,  or  annual  payment,  of 
which  no  notice  had  been  given.  To  the  same  effect  are  Jones  v. 
Gardner,  10  Johns.  266.  Cunningham  v.  Monell,  10  Johns.  203. 
Green  v.  Reynolds,  2  Johns.  207.  In  Chancery  also,  the  vendor 
claiming  relief  must  show  a  complete  title  free  from  all  incum- 
brances.    Sugd.  Vend.  (6th  edition,)  165, 176, 245,  278.     The  pur- 

vol.  ix.  2  E 


218  SUPREME  COURT  [Philadelphia, 

(Hampton  v.  Ppeckenagle*) 

chaser  may  always  have  a  reference  as  to  title,  lb.  165.  and  is  en- 
titled to  a  covenant  that  the  estate  is  free  from  incumbrances,  lb. 
331.  2  Madd.  Ch.  343,  347.  It  is  a  further  cause  of  complaint 
against  the  court  that  they  do  not  answer  the  question  proposed, 
whether  the  defendant  was  bound  to  take  the  land,  or  was  liable  to 
an  action,  but  merely  state,  that  the  incumbrances  were  not  the  cause 
of  his  refusal,  but  that  he  had  refused  before  the  day  to  take  the 
purchase.  Their  language  also  is  incorrect,  for  the  defendant  could 
not  in  point  of  law  refuse  before  the  day  :  the  plaintiff  had  no  right 
to  call  on  him  for  performance  before  the  day,  and  if  he  did,  the  de- 
fendant had  a  right  to  refuse. 

4  and  5.  The  fourth  point  proposed  by  the  defendant  was  not. 
answered  by  the  court.  They  were  asked,  whether  this  action  could 
be  maintained  if  the  defendant  acted  as  agent  for  the  plaintiff,  and 
exceeded  his  authority.  The  answer  is,  that  if  he  was  agent,  and 
acted  within  his  authority,  he  is  not  liable :  leaving  the  question 
still  to  be  solved,  whether  he  is  responsible  in  this  action,  if  he  ex- 
ceeded his  authority.  It  has  been  frequently  determined  by  this 
court  that  it  is  error  if  the  court  below  do  not  answer  the  question 
fully.  Shaffer  v.  Landis,  1  Serg.  fy  Rawle  449.  2  Serg.  8f  Rawle, 
44,  84,  415.  Fisher  v.  Larick,  3  Serg.  Sf  Rawle,  319.  We  con- 
tend, that  the  defendant,  if  agent,  was  liable  only  in  an  action  on 
the  case,  for  negligently  or  fraudulently  violating  his  instructions, 
and  not  as  a  contractor.  The  latter  mode  of  proceeding  would  de- 
prive him  of  many  grounds  of  defence,  of  which  he  might  avail 
himself  in  the  former.  The  proper  remedy,  say  the  court,  in  Sar- 
gent v.  Morris,  16  Johns.  74,  for  a  violation  of  instructions,  is  an 
action  on  the  case.  And  it  was  there  held,  that  trover  will  not  lie 
against  an  agent  who  sells  goods  deposited  with  him  for  sale,  at  a 
price  less  than  that  limited.  In  an  action  against  an  agent,  he  is 
entitled  to  an  allowance  for  a  loss  that  occurs,  where  he  acts  with 
good  faith,  and  due  diligence.  Andrews  v.  Pardee,  Hall's  Journ. 
Jurisp.  137  S.  C.  Connecticut. 

They  further  contended  that  the  declaration  was  defective:  1. 
Because  it  did  not  aver  that  the  plaintiff  had  tendered  a  deed,  or 
that  he  was  ready  to  do  so,  and  the  defendant  discharged  him. 
Zerger  v.  Sailor,  6  Binn.  28.  Gree?i  v.  Reynolds.  2  Johns.  206. 
Cunningham  v.  Monell,  10  Johns.  203.  Jones  v.  Gardiner,  10 
Johns.  266.  2  Chitt.  Plead.  127.  2  Went.  PL  91.  105.  Being 
ready  and  willing,  and  performing  or  offering  to  perform  in  gene- 
ral, is  not  sufficient.  2.  There  is  no  promise  or  assumption  by  the 
defendant,  laid  in  the  second  count.  It  is  not  sufficient  to  state 
circumstances  from  which  a  promise  may  be  deduced,  as  that  the 
defendant  became  the  purchaser :  a  promise  must  be  laid  expressly. 
1  Lev.  164,  Sid.  246.  Cro.  Eliz.  913.  2  Str.  793.  2  Call,  39. 
6  Mod.  613.  In  Winston' 's  Executors  v.  Francisco,  2  Wash. 
187,  it  is  expressly  decided,  than  in  an  action  of  assumpsit,  a  pro- 
mise by  the  defendant  must  be  averred,  and  the  want  of  it  is  not 


Dec.  1822.]  OF  PENNSYLVANIA.  219 

(Hampton  v.  Speckenagle.) 

cured  by  verdict.  3.  The  second  count  states  a  demand  of  per- 
formance on  the  26th  December,  which  was  before  the  defendant 
was  bound  to  perform.  4.  Neither  count  states  the  plaintiff's  title, 
or  that  he  had  a  title.  The  proper  form  is  an  averment,  that  the 
plaintiff  was  seised  in  his  demesne  as  of  fee,  and  being  so  seised 
agreed  to  sell.  1  Brownl.  Ent.  224,  2  Went.  PI.  9.  In  the  first 
count,  no  right  or  title  in  the  plaintiff  is  stated ;  and  in  the  second 
count,  he  is  said  to  have  been  the  "  owner,"  which  is  a  word  of 
indefinite  meaning,  and  may  embrace  an  estate  for  years,  or  an 
equitable  estate.  It  ought  to  have  been  said  that  the  plaintiff  had  a 
fee  simple. 

J.  R.  Ingersoll  and  Bradford,  contra. 

1st  bill  of  exceptions.  In- ejectment,  it  is  true,  the  judgment 
and  execution  must  be  shown,  in  order  to  warrant  the  giving  of  the 
sheriff's  deed  in  evidence :  for  there  the  title  is  expressly  in  issue. 
But  in  an  action  for  the  non-performance  of  an  agreement  of  pur- 
chase, a  different  rule  must  prevail.  In  such  case  it  has  been  held, 
that  the  vendor  in  making  out  his  title  need  not  prove  the  execu- 
tion of  deeds  by  calling  the  subscribing  witnesses  :  and  this  decision 
has  never  been  overruled.  1  Phill.  Ev.  407.  Sugd.  Vend.  178.  In 
analogy  to  this  principle,  the  sheriff's  deed  may  be  read  without 
proving  his  authority.  Its  effect  on  the  title  was  open  to  discus- 
sion, after  it  had  been  read  in  evidence. 

2d  bill  of -exceptions.  All  that  was  material  in  the  proceed- 
ings of  the  Orphans'  Court  was  exemplified ;  and  it  was  not  neces- 
sary -to  embrace  more.  We  produced  as  much  as  was  requisite  to 
show  our  title,  namely,  a  valuation  and  partition  among  the  heirs 
of  William  Broadnax,  under  the  authority  of  the  proper  court. 
The  court  will  not  presume  a  want  of  jurisdiction,  or  an  irregu- 
larity in  their  proceedings,  when  nothing  appears  to  justify  such 
presumption.  On  the  contrary,  they  will  presume  a  partition  and 
order,  on  which  the  appraisers  and  the  court  made  a  final  parti- 
tion. \ 

As  to  the  charge  of  the  court.  1st  point.  It  was  not  necessary 
for  the  plaintiff  to  tender  a  conveyance,  because  the  defendant 
would  not  take  the  land.  The  plaintiff  cannot  be  called  upon  to 
do  a  nugatory  act.  All  that  is  requisite  is,  that  he  should  show  that 
he  was  ready  and  willing  to  perform  his  part  of  the  contract :  and 
if  before  the  day,  the  defendant  denies  that  he  made  the  purchase, 
the  plaintiff  is  not  bound  to  go  further.     2  Phill.  Ev.  63. 

2d  and  3d  points.  The  defendant  could  not  object  at  the  trial, 
that  the  land  was  encumbered,  because  he  refused  on  other  grounds, 
and  not  on  that  account.  He  denied  the  purchase.  If  he  had  de- 
clined compliance  with  his  contract  on  that  ground,  the  plaintiff 
could  have  removed  the  incumbrances,  and  would  have  done  so 
before  the  1st  April.  This  case  cannot  be  distinguished  from  the 
case  of  McMurtrie  v.  Bergasse,  tried  at  Nisi  Prius  before  the 
Chief  Justice,  where  the  defendant  objected  on  the  trial,  that  the 


220  .  SUPREME  COURT  [Philadelphia, 

(Hampton  v.  Speckenagle.) 

property  was  subject  to  a  ground  rent  not  mentioned  at  the  time 
of  sale.  But  the  court  overruled  the  objection,  because  the  defen- 
dant had  denied  that  he  had  made  the  purchase,  and  made  no 
objection  on  account  of  the  ground  rent.  So  in  Pickering  v.  Sta- 
pler 5  Serg.  6f  Rawle,  107,  it  was  held,  that  if  the  purchaser  refuse 
to  accept  a  deed  on  account  of  some  alleged  defect  in  it,  he  can- 
not afterwards  entitle  himself  to  damages  by  showing  that  the 
vendor  was  not  able  to  deliver  possession. 

4th  and  5th  points.  Though  the  language  of  the  court  is  some- 
what indistinct,  yet  what  they  meant  to  say  was,  that  if  the  defen- 
dant acted  as  agent,  and  went  beyond  his  authority,  he  was  liable 
in  this  suit.  If  the  agent  bids  more  than  he  is  authorized  to  bid, 
he  may  be  considered  as  bidding  on  his  own  account,  and  pro- 
ceeded against  as  a  purchaser.  Sugd.  Vend.  36.  7  Cranch.  367. 
2  Johns.  48.  "  15  Johns.  45. 

The  alleged  errors  in  the  declaration  are  nof  well  founded,  or 
are  cured  by  the  verdict. 

1.  The  modern  authorities  show  that  it  is  sufficient  to  allege 
performance  or  a  readiness  to  perform.  2  Phill.  Eo.  63.  10 
Johns.  203,  266.  2  Johns.  207.  2.  It  is  also  unnecessary  to  aver 
that  the*defendant  assumed.  If  sufficient  is  stated  to  show  the  de- 
fendants liability,  it  is  good  after  verdict.  3  Mass.  Rep.  167.  9 
Mass.  Rep.  199.  1  Salk.  198.  3.  The  declaration  does  not  aver 
a  demand  of  performance  before  the  day  :  but  if  there  be  an  ambi- 
guity, the  verdict  cures  it.  4.  The  modern  precedents  do  not 
set  out  the  title  :  it  is  enough  to  say,  that  the  plaintiff  was  seised 
in  fee,  and  the  word  "  ow7ner  "  is  equivalent  to  that.  2  Chitty's 
Plead.  129. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  action  was  brought  by  William  Speck- 
enagle the  plaintiff  above  (who  is  defendant  in  error,)  against  Alex- 
ander Hampton,  for  breach  of  contract,  respecting  a  tract  of  land 
sold  by  the  plaintiff  to  the  defendant.  The  sale  was  by  public 
auction,  and  the  price  89  dollars  50  cents  per  acre.  The  defen- 
dant denied  that  he  was  the  purchaser,  and  averred,  that  his  bid 
of  89  dollars  50  cents  an  acre,  was  made,  as  agent  for  the  plain- 
tiff, and  on  his  account.  Several  bills  of  exceptions  were  taken 
by  the  defendant  in  the  course  of  the  trial  below,  to  the  opinion  of 
the  court  on  the  admission  of  evidence  ;  an  exception  was  also 
taken  to  the  opinion  of  the  court  on  several  points  proposed  by  the 
defendant's  counsel,  and  given  in  charge  to  the  jury.  Errors  have 
been  assigned  also  in  the  plaintiff's  declaration. 

1st.  It  appears  by  the  first  bill  of  exceptions,  that  the  plaintiff  in 
making  out  his  title  to  the  land  sold  to  the  defendant,  offered  in 
evidence,  a  deed  from  the  Sheriff  of  Bucks  County,  without  pro- 
ducing the  record  of  the  judgment  and  execution  recited  in  the  deed, 
by  virtue  of  which,  the  sale  was  made  by  the  Sheriff.     This  deed 


Dec.  1822.]  OF  PENNSYLVANIA.  221 

(Hampton  v.  Spcckenagle.) 

was  objected  to  by  the  defendant's  counsel,  but  the  court  admit- 
ted it. 

A  Sheriff's  deed  conveys  no  title,  unless  the  sheriff  was  author- 
ized to  sell,  and  his  authority  can  be  proved  in  no  other  manner 
than  by  showing  a  judgment,  and  the  subsequent  process  of  execu- 
tion and  venditioni  exponas.  A  deed  by  which  nothing  passes, 
is  not  evidence.  A  Sheriff's  deed  was  permitted  to  be  given  in 
evidence,  without  showing  the  judgment  and  execution,  in  the  case 
of  Burkes  Lee.  v.  Ryan,  1  Dull.  94,  where  possession  had  gone 
along  with  the  deed  for  more  than  twenty  years.  But  where  it  was 
unsupported  by  great  length  of  possession,  this  court  rejected  it, 
in  the  case  of  Wilson's  Lee.  v.  Ml  Veagh,  2  Yeates,  86,  and  Wey- 
and  v.  Tipton,  5  S.  fy  R.  332.  In  the  present  instance,  therefore, 
it  ought  not  to  have  been  admitted. 

2d.    The  plaintiff  offered  also  in  evidence,  part  of  the  record  and 
proceedings  in  the  Orphans'  Court  of  Bucks  County,  respecting 
the  valuation  and  partition  of  the  real  estate  of  William  Broadnax, 
deceased,  to  which  the  defendant's  counsel  objected,  but  the  court 
admitted  the  evidence,  and  an  exception  was  taken  to  their  opinion. 
This  is  the  second  bill  of  exceptions.     When  the  exemplification 
of  a  record  is  offered  in  evidence  it  must  contain  the  whole  record, 
because  the  court  cannot  form  a  correct  judgment,  without  seeing 
the   whole.     The   law  is   so   laid    down  in   Gilbert's    Treatise   on 
Evidence,  p.  17,  and  in  1  Phill.  Ev.  290.     And  the  reason  of  this 
rule  will  plainly  appear,  when  applied  to  the  case  before  us.     The 
part  of  the  record  which  was  produced,  showed  that  certain  per- 
sons, by  order  of  the  Orphans'  Court,  made  a  valuation  and  parti- 
tion of  the  real  estate  of  William  Broadnax,  and  reported  their  pro- 
ceedings to  the  court,  by  whom  they  were  confirmed.     But    the 
petition,  and  the  facts,  on  which  the  order  of  the  court  for  making 
partition  was  founded,  did  not  appear,  so  that  it  was  impossible  for 
the  District  Court  to  judge,  whether  it  was  a  case  within  the  juris- 
diction of  the  Orphans'  Court,  and  if  not,  the  proceedings  were 
void.     The  evidence,  therefore,  ought  not  to  have  been  received. 

3d.  The  third  exception  was  to  the  charge  of  the  court,  on  seve- 
ral points  proposed  by  the  counsel  for  the  defendant. 

The  first  point  was,  "that  the  plaintiff  was  not  entitled  to  re- 
cover, because  he  had  never  executed,  or  tendered,  or  offered  to 
tender,  a  deed  to  the  defendant  for  the  property  alleged  by  him  to 
have  been  sold  to  the  defendant,  for  the  breach  of  the  contract 
concerning  which  the  suit  was  brought."  The  court  answered, 
"that  this  suit  was  not  brought  for  recovery  of  the  purchase  mo- 
ney, but  damages  for  refusing  to  comply  with  the  contract,  and  in- 
asmuch as  the  defendant  had  told  the  plaintiff  before  the  time  fixed 
for  the  plaintiff's  making  the  conveyance,  that  he  would  not  take 
the  land  because  he  had  never  purchased  it ;  the  plaintiff  might  re- 
cover damages  without  tendering  a  deed  of  conveyance."     It  is  of 


222  SUPREME  COURT  [Philadelphia, 

(Hampton  v.  Speckenagle.) 

no  importance,  whether  the  court  was  correct  in  the  distinction  be- 
tween an  action  for  recovery  of  the  purchase  money,  and  one  for 
recovery  of  damages,  for  refusing  to  comply  with  the  contract. 
The  material  question  was,  whether  a  tender  of  the  deed  was  es- 
sential to  the  plaintiff's  recovering  in  this  suit.  And  I  am  of  opi- 
nion, that  under  the  circumstances  stated  by  the  court,  it  was  not ; 
for  why  should  the  plaintiff  tender  a  deed,  which  the  defendant  told 
him  he  would  not  accept?  It  would  have  been  a  nugatory  act, 
which,  from  the  conduct  of  the  defendant,  it  might  fairly  be  pre- 
sumed, he  had  dispensed  with.  He  denied  that  he  had  made  the 
purchase,  and  made  no  other  objection.  That  was  the  only  point 
in  dispute.  There  was  no  error,  therefore,  in  the  opinion  of  the 
court  on  this  head. 

The  second  and  third  points  may  be  reduced  to  one,  viz:  "  that 
the  defendant  was  not  bound  to  take  the  land,  even  if  he  had  been 
the  purchaser,  because  there  were  incumbrances  on  it,  not  mentioned 
at  the  time  of  sale."    The  court  answered,  that  "  these  incumbrances 
were  not  the  cause  assigned  by  the  defendant,  for  his  refusal  to  per- 
form the  contract  on  his  part,  nor  made  the  ground  of  objection, 
but  that  he  had  refused  to  take  the  purchase  before  the  time  limited 
for  making  the  deed  and   discharging  the  incumbrances."     This 
answer  was  not  quite  so  full  as  it  ought  to  have  been.     Although 
the  defendant  had  declared,  that  he  would  not  take  the  land,  yet 
before  the  plaintiff  would  be  entitled  to  recover  damages  it  was  in- 
cumbent on  him  to  show  that  it  was  not  in  his  power  to  make  a  good 
title.     He  has  averred  in  his  declaration,  that  he  was  ready  to  do 
all  things  necessary  to  be  done  on  his  part,  and  that  averment  cannot 
be  supported,  if  he  was  unable  to  make  title.     If  the  incumbrances 
were  of  such  a  nature,  that  the  jury  might  be  satisfied  from  the 
plaintiff's  evidence,  that  he  could  and  would  have  removed  them, 
had   the  defendant  been  willing  to  accept  a  conveyance,  the  case 
would  fall  within  the  principle  of  M'Murtrie  v.  Bergasse,  and  the 
plaintiff  might  recover.     But  the  ability  to  discharge  the  incum- 
brances, was  a  point  which  lay  upon  the  plaintiff  to  establish  beyond 
doubt.     If  he  failed  there,  he   could   not  be  entitled  to  damages. 
But  if  he  satisfied  the  jury  on  that  point,  he  might  recover. 

The  defendant's  fourth  point  was,  that  if  the  defendant  acted  as 
agent  for  the  plaintiff,  and  exceeded  his  authority,  the  plaintiff  had 
mistaken  his  remedy,  and  could  not  recover  in  this  action.  And 
the  fifth  point  was,  that  the  action  could  not  be  supported,  unless 
the  jury  was  satisfied  that  the  defendant  had  exceeded  his  authority. 
To  both  these  points,  the  court  answered  "  that  this  action  is  not 
against  the  defendant  as  agent  of  the  plaintiff;  and  that  if  it  appear- 
ed to  the  jury  that  he  was  the  agent  of  the  plaintiff,  and  acted  with- 
in his  authority,  the  plaintiff  cannot  sustain  his  suit."  The  de- 
fendant's counsel  complain,  that  their  fourth  point  was  not  answered, 
and  indeed,  it  does  not  seem  to  have  been  answered  so  distinctly  as 
it  might  have  been,  although  I  think  the  opinion  intended  to  have 


Dec.  1822.]  OF  PENNSYLVANIA.  223 

(Hampton  v.  Speckenagle.) 

been  given  was  correct.  The  meaning  of  the  court  I  take  to  have 
been,  that  if  the  defendant  was  an  agent,  and  acted  within  his  au- 
thority, the  action  could  not  be  supported  ;  but  although  employed 
by  the  plaintiff  as  an  agent,  to  bid  for  him  at  the  auction,  yet  if  he 
exceeded  his  authority,  he  would  be  considered  in  law,  as  having  di- 
vested himself  of  the  character  of  agent,  and  made  the  purchase 
on  his  own  account.  If  I  am  right  in  supposing  that  to  be  what 
the  court  intended,  no  fault  can  be  found  with  the  opinion,  (See 
Sugden,  36,  5  Lond.  Ed.) 

There  were  several  errors  assigned  in  the  declaration,  which 
need  not  be  minutely  investigated,  because,  as  the  judgment  must 
be  reversed,  for  other  causes  ;  the  plaintiff's  counsel  will  have  an 
opportunity  of  amending  any  thing  which  maybe  defective,  before 
the  cause  comes  to  trial  again  in  the  court  below.  In  order  to 
avoid  cavil,  I  think  it  would  be  prudent  to  lay  a  positive  assump- 
tion by  the  defendant,  and  to  aver,  that  the  plaintiff  was  seized  of 
a  good  estate  in  fee  simple.  Any  other  errors,  if  errors  there 
were,  would  be  cured  by  the  verdict.  Upon  the  whole,  I  am  of 
opinion,  that  the  judgment  should  be  reversed,  and  a  venire  de 
novo  awarded. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


[Philadelphia,  Feb.  10,  1823.] 

In  the  case  of  JOSEPH  WALKER'S  Estate. 

APPEAL. 

Commission  of  executors  fixed  at  three  per  cent,  upon  settling  an  account  to  the 
amount  of  37000  dollars,  which  principally  consisted  of  bank  shares  transferred  to 
the  legatees,  though  the  executors  were  also  to  pay  some  annuities,  clothe  and 
educate  children,  and  distribute  some  dividends  of  bank  shares  in  charities;  there 
being  no  evidence  of  the  degree  of  trouble  the  executors  had  had  in  these  respects. 

The  number  of  the  executors  is  not  to  make  any  difference  in  the  rate  of  commission. 
If  their  trouble  is  unequal,  a  share  of  the  commission  ought  to  be  assigned  to  each, 
proportioned  to  his  trouble. 

Commission  should  be  paid  for  services  when  rendered,  not  by  anticipation  for  such 
as  may  be  done  in  future. 

This  was  an  appeal  by  Samuel  Walker,  William  Blakey,  and 
Thomas  Hutchinson,  executors  of  Joseph  Walker,  deceased,  from 
the  decree  of  the  Orphans'  Court  of  Philadelphia,  County,  on  the 
settlement  of  their  accounts.  The  only  dispute  was  respecting  the 
amount  of  the  commissions  they  were  entitled  to.  The  will  of 
Joseph  Walker  was  proved  on  the  3d  May,  1813.  On  the  24th 
December,  1813,  the  first  account  of  the  executors  was  filed,  in 
which  they  charged  a  commission  of  five  per  cent,  on  41,117  dol- 
lars and  15  cents:  and  on  the  18th  February,  1814,  this  account 
was  confirmed  in  the  Orphans'  Court.  In  August,  1818,  they  filed 
a  second  account,  which  was  referred  to  auditors :  the  commission 


224  SUPREME  COURT  [Philadelphia, 

(In  the  case  of  Joseph  Walker's  Estate.) 

charged,  was  102  dollars  37  cents,  on  14,108  dollars  36  cents, 
which  was  allowed  by  the  auditors,  and  no  exception  was  taken. 
In  April,  1818,  an  application  was  made  to  the  Orphans'  Court  to 
refer  the  first  account  to  auditors,  which  was  done.  The  auditors 
confirmed  the  allowance  of  five  per  cent,  commission,  the  account, 
after  correcting  errors,  being  reduced  to  little  more  than  37000 
dollars.  Exceptions  were  filed  to  their  report,  that  the  commis- 
sion was  too  high.  The  court,  after  hearing  the  exceptions,  reduced 
the  commission  to  three  per  cent. 

Binney  for  the  appellant,  contended,  that  the  commission  ought  to 
be  restored  to  the  sum  fixed  by  the  auditors,  namely,  five  per  cent. 
No  particular  sum  is  established  by  any  law,  and  courts,  in  the  ad- 
justment of  the  commission,  but  must  be  governed  by  circumstances. 
If  the  trusts  imposed  on  the  executors  by  this  will  are  adverted  to, 
five  per  cent,  will  be  thought  a  moderate  compensation.  In  the 
first  place,  all  the  children  of  the  testator's  sister  Mrs.  Paxton,  who 
are  under  age,  are  to  be  clothed,  end  completely  schooled  and  edu- 
cated, at  the  expense  of  his  estate,  by  his  executors.  Secondly, 
the  interest  on  the  bond  and  mortgage  of  Mahlon  Paxton,  is  to  be 
recovered  by  the  executors,  and  paid  to  Mrs.  Paxton,  during  her 
life.  Thirdly,  an  annuity  of  200  dollars  is  to  be  paid  to  her  during 
life.  Fourth,  an  annuity  of  100  dollars  is  to  be  paid  to  Mrs.  Hutch- 
inson for  life.  Fifth,  ten  shares  in  the  bank  of  Philadelphia,  are 
to  be  received  by  the  executors,  and  expended  in  charity,  viz :  the 
clothing  of  poor  children.  No  additional  charge  will  be  made  on 
paying  the  annuities  hereafter.  ]£  is,  also,  to  be  considered,  that 
the  trouble  is  increased  by  the  residence  of  two  of  the  executors  in 
Bucks  County,  and  one  in  Philadelphia. 

J.  R.  Ingersoll,  contra.  The  compensation  to  executors  cannot 
be  settled  by  any  definite  rule.  On  large  sums  where  the  trouble 
is  not  much,  the  commission  should  be  small:  and  e  contra,  it  must 
be  increased  in  proportion  as  their  ^trouble  is  increased,  and  the 
sum  passing  through  their  hands  diminished.  If  there  are  several 
executors,  and  their  trouble  is  unequal,  the  compensation  to  each 
should  be  different.  In  this  case,  Hutchinson  is  allowed  100 
dollars  extra,  for  travelling  expenses.  As  to  the  annuities  to  be 
paid,  it  is  uncertain  how  long  these  executors  may  live,  to  pay  them, 
and  then  others  will  come,  who  may  charge  a  commission  on  their 
payments.  These  executors  have  charged  commissions  on  money 
remaining  in  their  own  hands,  (about  5000  dollars,)  as  a  fund  to 
perform  the  trusts :  and  it  is  doubtful  whether  the  commission  for 
paying  these  annuities,  ought  not  to  come  out  of  the  fund  which  is 
to  pay  them.  The  inventory  contains  almost  the  whole  estate, 
which  consisted  of  bank  stock  of  different  kinds,  transferred  by  the 
executors  to  the  legatees  without  further  trouble.  Mrs.  Paxton's 
children  are  all  now  of  age  :  and  S.  Walker,  the  acting  executor, 
who  lived  in  Philadelphia,  has  removed  to  a  distant  part  of  JVeiv- 
York,  so  that  he  cannot  do  much  more,  and  some  other  person 


Dec.  1822.]  OF  PENNSYLVANIA.  225 

(In  the  case  of  Joseph  Walker's  estate.) 

must  be  employed,  who  will  be  entitled  to  receive  compensation. 
When  the  Orphans'  Court  heard  these  exceptions,  evidence  was 
laid  before  them  respecting-  the  trouble  which  the  executors  had  had, 
in  administering  the  estate,  and  upon  this  they  decided.  This  court 
has  no  evidence  laid  before  them,  upon  which  they  can  undertake  to 
say,  the  Orphans'  Court  were  wrong,  and,  therefore,  will  not  lightly 
change  the  sum  they  have  allowed. 

Binney,  in  reply.  Five  per  cent,  has  been  the  usual  commission, 
and  was  allowed  by  the  auditors,  who  heard  these  parties  fully, 
and  thought  it  reasonable.  Part  of  the  receipts  are  rents  from  old 
houses  which  must  have  required  great  attention  :  the  sums  received 
were  small,  and  the  various  disbursements  consist  of  numerous 
small  sums.  Five  per  cent,  is  a  small  compensation  for  the  receipt 
of  such  rents.  After  correcting  errors,  the  total  commission  will  be 
but  five  per  cent,  on  37000  dollars.  There  would  be  a  peculiar  hard- 
ship in  reducing  it  now,  because  the  first  account  was  never  ques- 
tioned until  after  the  settlement  of  the  second  account  in  August, 
1818,  and  this  account  was  settled  on  a  supposition,  that  the  first  ac- 
count was  closed,  and,  therefore,  less  commission  was  charged,  than 
would  have  been,  had  it  been  known  that  the  first  account  was  to  be 
opened,  and  the  commission  called  in  question.  The  executors  have 
charged  travelling  expenses,  but  nothing  for  the  time  spent  in  travel- 
ling. It  is  extremely  difficult  for  executors  to  prove  the  exact  de- 
gree of  trouble  they  have  had. 

Until  some  law  is  made,  fixing  compensation,  the  best  rule  is  to 
consider  five  per  cent,  as  the  ordinary  allowance,  and  not  to  depart 
from  that,  either  by  exceeding  or  falling  below  it,  unless  under  spe* 
cial  circumstances. 

The  opinion  of  the  court  was  delivered  by 

Tilghmapt,  C.  J.  The  executors  of  Joseph  Walker  have  ap- 
pealed from  the  decree  of  the  Orphans'  Court,  on  the  settlement  of 
their  account.  The  only  dispute  is  on  the  subject  of  their  commis- 
sion. The  executors  charged  five  per  cent,  which  the  court  reduced 
to  three. 

There  were  three  executors,  one  of  whom,  {Samuel  Walker, 
brother  of  the  testator,)  resided  in  the  city  of  Philadelphia,  and  the 
two  others  in  Bucks  County.  A  commission  of  five  per  cent,  was 
allowed  on  a  sum  of  37000  dollars,  and  something  more.  The 
amount  of  the  commission  was,  1,862  dollars  10  cents,  which  being 
divided  between  the  three  executors,  gave  620  dollars  70  cents  to 
each.  Having  explained  the  principles  by  which  the  compensation 
of  executors  should  be  regulated,  in  the  opinion  which  I  have  just 
delivered  in  the  case  of  Pusey  v.  Clemson,  it  is  unnecessary  to  re- 
peat them  now.  The  Orphans'  Court  were  of  opinion,  that  this  was 
a  case,  in  which  the  usual  commission  of  five  per  cent,  should  be  de- 
parted from,  and  it  lies  upon  the  appellants  to  show  that  the  decree 
was  erroneous.     It  appears,  that  the  estate  consisted  principally  of 

vol.  ix.  2  F 


226  SUPREME  COURT  [Philadelphia 

(In  the  case  of  Joseph  Walker's  estate.) 

bank  stock,  which  was  transferred  by  the  executors  to  the  legatees 
of  the  testator,  so  that  the  executors  were  saved  the  trouble  of  col- 
lecting the  money  and  paying  it  over.  For  this  kind  of  service,  three 
per  cent,  is  a  very  ample  allowance.  But  several  circumstances 
have  been  mentioned  to  show  that  the  executors  had  considerable 
trouble  in  the  discharge  of  their  duty.  They  were  to  attend  to  the 
clothing  and  education  of  the  children  of  the  testator's  sister,  Mrs. 
Paxton,  while  in  their  minority.  They  were  to  pay  an  annuity 
of  200  dollars  to  Mrs.  Paxton  for  her  life;  an  annuity  of  100  dol- 
lars to  Mrs.  Hutchinson  for  her  life,  and  distribute  the  dividends 
on  10  shares  in  the  bank  of  Philadelphia,  in  charities.  Some  re- 
liance too  was  placed  on  the  circumstance  of  there  being  three  ex- 
ecutors, so  that  the  compensation  was  not  so  great,  as  if  the  whole 
had  been  given  to  one.  I  do  not  think,  the  number  of  the  executors 
s-hould  make  any  difference  in  the  rate  of  commission.  The  ques- 
tion is,  what  is  an  adequate  allowance  for  the  trouble  of  doing  the 
whole  business.  If  the  trouble  of  the  executors  has  been  unequal, 
as  is  generally  the  case,  they  should  do  justice  among  themselves, 
by  assigning  to  each,  a  share  of  the  whole  allowance,  proportioned 
to  his  trouble ;  or,  if  they  choose  to  divide  it  equally,  it  is  their  own 
concern,  and  they  may  settle  it  as  they  please.  With  regard  to  the 
clothing  and  education  of  Mrs.  Paxtori's  children,  it  may  have  been 
very  great,  or  very  little.  If  the  executors  had  to  attend  to  all  the 
details  of  clothing,  schooling,  <5Cc.  the  trouble  has  been  great. 
But  if  the  mother  took  all  this  upon  herself,  and  the  executors  had 
only  to  advance,  from  time  to  time,  such  money  as  was  necessary, 
their  trouble  has  been  little.  On  this  subject  we  have  been  left  in 
the  dark.  The  executors  have  produced  no  evidence.  As  to  the 
annuities  and  the  charity,  the  counsel  for  the  executors  says,  that  it 
is  not  intended  to  make  any  charge  for  the  trouble  of  future  pay- 
ments, and,  therefore,  it  is  reasonable,  that  they  should  be  allowed 
a  commission  of  five  per  cent,  on  the  whole  capital  remaining  in  their 
hands,  as  a  fund  to  answer  the  annuities,  and  the  annual  charity, 
(upwards  of  5000  dollars.)  But  id  this  it  has  been  truly  answered, 
that  it  is  impossible  to  say,  how  long  the  executors  may  live,  and  in 
case  of  their  death,  the  trouble  will  fall  on  other  persons,  who  will 
expect  a  compensation.  The  safest  way  is,  to  make  a  reasonable 
allowance  to  the  executors,  for  the  services  which  they  have  per- 
formed, without  anticipating  what  may  be  done  in  future.  Con- 
sidering all  the  evidence  which  has  been  laid  before  us,  I  can- 
not say,  that  the  appellants  have  shown  sufficient  cause  for  reversing 
the  decree  of  the  Orphans'  Court,  and,  therefore,  I  am  of  opinion 
that  it  should  be  affirmed. 

Judgment  affirmed. 

END  OF  DECEMBER  TERM,  1822. 


CASES 


IN  THE 


SUPREME  COURT  OF  PENNSYLVANIA. 

EASTERN  DISTRICT-MARCH  TERM,  1821. 


[Philadelphia,  March  21,  1823.] 

The   Germantown   and   Perkiomen   Turnpike   Company    against 

Naglee. 


IN  ERROR. 


A  corporation  must  give  absolute  security  for  deb',  interest,  and  costs,  on  appeal, 
ing  from  the  judgment  of  an  alderman  against  them.  If  the  security  be  for  less, 
the  appeal  m«y  be  dismissed. 

John  Naglee,  the  defendant  in  error,  brought  this  suit  originally 
before  Alderman  Geyer,  and  recovered  judgment  against  the  de- 
fendants, for  the  sum  of  65  dollars  and  70  cents.  The  defendants 
appealed  to  the  Court  of  Common  Pleas,  and  entered  security  in 
the  sum  of  30  dollars.  The  court  below  held,  that  the  defendant 
had  not  given  sufficient  security,  and,  on  motion,  dismissed  the 
appeal. 

Chew,  for  the  plaintiffs  in  error,  contended,  that  no  security 
was  necessary  in  this  case,  and,  therefore,  the  appeal  was  regularly 
entered.  Under  the  act  of  20th  March,  1810,  sect.  4.  Purd. 
Dig.  355,  a  body  corporate  or  politic  is  entitled  to  an  appeal  from 
a  justice  without  being  bound  with  surety  in  the  nature  of  special 
bail.  The  act  of  22d  March,  1817,  sect.  4.  provides,  that  "when 
any  corporation  shall  be  sued,  and  shall  appeal,  or  take  a  writ  of 
error,  the  bail  requisite  in  that  case  shall  be  taken  absolute  for  the 
payment  of  the  debt,  interest,  and  costs  on  affirmance  of  the 
judgment."  This  act  only  provides  for  the  change  of  the  nature 
of  the  security  where  bail  was  then  requisite  :  but  in  the  present 
case  no  bail  was  requisite,  and,  therefore,  the  act  does  not  apply. 

Mahany,  for  the  defendant  in  error,  urged  that  the  construction 


228  SUPREME  COURT  [Philadelphia, 

(The  Germantown  and  Perkiomen  Turnpike  Company  v.  Naglee.) 
given  by  the  court  below  was  the  proper  one  ;  namely,  that  it  was 
the  intention  of  the  legislature  to  direct,  that  in  all  cases  where 
private  persons  were  previously  bound  to  give  special  bail  on  ap- 
peal, corporations'  should  give  absolute  security  for  the  debt,  inte- 
rest, and  costs.  The  reason  why  corporations  were  exempted  from 
giving  special  bail  was,  that  it  was  inconsistent  with  their  charac- 
ter and  nature  :  they  could  not  be  surrendered  in  discharge  of  bail, 

2  Binn.  264.  But  this  objection  did  not  apply  to  their  giving  ab- 
solute security :  and,  therefore,  the  legislature  could  not  mean  to 
exempt  them  in  any  case.  As  the  security  was  not  regular,  the 
proper  course  was   to  dismiss  the  appeal.     1  Serg.   fy  Rawle  491, 

3  Serg.  #  Rawle,  93. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  was  an  action  brought  by  John  JYaglee, 
against   the    Germantown   and   Perkiomen  Turnpike  Company  be- 
fore Alderman  Geyer,  who  gave  judgment  for  the  plaintiff  for  65 
dollars  and  70   cents.     The  defendants  appealed  to  the  Court  of 
Common  Pleas,  and  entered  security  in  the  sum  of  30  dollars  only. 
The  court  ordered  the  appeal  to  be  dismissed,  because  the  security 
was  not  sufficient  to  answer  the  debt  and  costs,  and  the  question  is, 
whether  this  was  a  case  in  which  the  defendants  were  bound  to 
give  any  security.     By  the  act  of  20th  March,  1810,  sect.  4.  Purd. 
Dig.  355,  in  case   the  defendant  appealed  from  the  judgment  of 
a  justice  or  alderman,  he  was  to  be  bound  with  surety  in  a  sum  suf- 
ficient to  cover  the  sum  in  controversy,  with  costs,  &c. ;  but  this  ob- 
ligation was  to  be   n  the  nature  of  special  hail,  and  therefore  bo- 
dies corporate  were  expressly  excepted,  and  might  appeal  without 
giving  any  security.     Thus  the  thing  remained,  until  the  passing 
of  the  act  of  22d  March,  1817,  entitled,  "  An  Act  relative  to  suits 
brought  by  or  against  corporations ;"  by  the  4th  section  of  which 
it  was  enacted,  "  that  i    case  of  appeal,  certiorari,  or  writ  of  error, 
by  any  corporation,  the  oath  or  affirmation  required  by  law,  shall 
be  made  by  the  president  or  other  chief  officer  of  the  corpora- 
tion, or  in  his  absence,  by  the  cashier,  treasurer,  or  secretary,  and 
when  any  corporation  shall  he    sued,  and  shall  appeal   or    take   a 
writ  of  error,  the   bail   requisite  in   that  case,  shall   be   taken   ab- 
solute for   the    payment   of  debts,   interest,   and   costs,    on    affirm- 
ance of  the  judgment.^     The  argument  of  the  defendants'  counsel 
is,  that  inasmuch  as  no  bail  was  requisite  in  this  case  at  the  time 
of  the  passage  of  the  act  last  mentioned,  the  provision  of  the  4th 
section  did  not  extend  to  it.  The  argument  is  not  without  ingenuity, 
but  it  gives  a  construction  not  consistent  with  the  intent  of  the  act. 
It  was  understood,  that   under  the  former   law,  when  individuals 
gave  security  upon  an  appeal,  in  the  nature  of  special  bail,  corpora- 
tions were  exempt  from  all  security ;  and  this  was  thought  to  be 
an  inconvenience  to  plaintiffs.    How  was  this  to  be  remedied  ?  To 
say  that  corporations  should  give  security  in  the  nature  of  special 


'* 


March,  1823.]  OF  PENNSYLVANIA.  229 

(The  Germantown  and  Perkiomen  Turnpike  Company  v.  Naglee.) 

bail,  would  be  absurd,  and  therefore  it  was,  that  the  act  of  1817, 
required  the  security  to  be  absolute.  The  words  of  the  4th  section 
are  very  comprehensive,  and  I  have  no  doubt,  were  intended  to 
provide  for  this  very  case.  I  agree  therefore  to  the  construction 
given  to  this  act  by  the  Court  of  Common  Pleas,  and  am  of  opinion 
that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


[Philadelphia,  March  23,  1823.] 
Bank  of  Montgomery  county  against  WALKER. 

IN  ERROR. 

The  indorser  of  a  promissory  note  is  not  a  competent  witness,  in  a  suit  against  the 
maker,  to  prove,  that  though  drawn  as  a  note  of  business,  and  so  discounted  by 
the  holder,  it  was  in  reality  in  its  origin  a  note  for  the  accommodation  of  the  in- 
dorser,  especially  if  the  indorser  gave  a  bond  of  indemnity  to  the  maker  when  the 
note  was  drawn. 

If  a  note  be  drawn  and  indorsed  for  the  accommodation  of  the  indorser,  and  a 
bond  of  indemnity  be  given  by  the  indorser  to  the  maker,  the  holder  does  not  dis- 
charge the  maker  by  giving  time  to  the  indorser  after  the  day  of  payment,  though 
the  holder  knows,  when  time  is  given,  that  it  was  a  note  for  the  accommodation  of 
the  indorser. 

This  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of 
Chester  county,  where  a  verdict  and  judgment  were  rendered  for 
the  defendant.  The  case  was  tried  before  Hallowell,  President, 
who  held  a  Special  Court  for  the  trial  of  causes,  in  which  Dar- 
lington, President,  had  been  of  counsel. 

It  was  an  action  on  a  promissory  note,  dated  the  1st  November, 
1817,  drawn  by  the  defendant  Thomas  Walker,  in  favour  of  Wal- 
ker, and  George,  or  order,  and  by  them  indorsed  to  the  plaintiffs, 
for  3000  dollars,  at  90  days  after  date.  On  the  trial,  the  defendant 
offered  in  evidence,  the  deposition  of  Enoch  Walker,  one  of  the 
firm  of  Walker  <$•  George,  which  was  objected  to  by  the  plaintiff. 
And  the  court  being  of  opinion  that  the  deposition  was  legal  evi- 
dence for  the  purpose  of  showing,  that  the  original  note  of  the  18th 
June,  1816,  and  the  subsequent  notes,  including  the  note  in  question, 
were  accommodation  notes ;  that  the  said  Enoch  Walker  was  a  di- 
rector of  the  Bank  of  Montgomery  county ;  and  that  the  Bank  knew 
of  their  being  accommodation  notes,  and  when  they  came  to  that 
knowledge,  overruled  the  objection,  and  admitted  the  deposition  ; 
to  this  opinion,  the  plaintiffs  excepted. 

The  defendant,  afterwards,  offered  Thomas  George,  one  of  the 
firm  of  Walker  fy  George,  but  the  plaintiffs  objected  to  him.  The 
court,  being  of  opinion  that  Thomas   George,  was  a  legal  witness, 


230  SUPREME  COURT  [Philadelphia, 

(Bank  of  Montgomery  County  ».  Walker.) 

admitted  him  to  be  affirmed  and  examined.  To  this  opinion,  also, 
the  plaintiffs  excepted. 

Enoch  Walker  and  Thomas  George  stated,  that  they  carried  on 
the  milling  business,  under  the  firm  of  Walker  Sc  George,  and  on 
the  15th  June,  1816,  obtained  of  the  defendant,  who  was  a  farmer, 
and  the  brother  of  the  said  E.  Walker,  his  promissory  note  in  their 
favour,  for  3000  dollars,  which  they  indorsed,  and  had  discounted 
in  the  Bank  of  Montgomery  county:  that  the  note  was  drawn  in 
the  form  of  a  business  note,  but  was  solely  for  the  accommodation 
of  the  said  Walker  fy  George,  no  value  ever  having  been  received 
for  it  by  T.  Walker,  the  defendant.  That  at  the  time  of  making 
the  note,  E.  Walker  and  T.  George  gave  to  E.  Walker,  the  defen- 
dant, their  bond,  conditioned  for  the  payment  of  3000  dollars,  in 
one  year,  which,  they  stated,  was  given  to  show,  that  T.  Walker 
had  received  no  part  of  the  money  upon  the  note.  The  witnesses 
could  not  recollect,  that  any  thing  was  said  to  the  board  of  di- 
rectors, of  the  note's  being  an  accommodation  note,  at  the  time  it 
was  discounted,  or  that  any  notice  was  given  to  them,  that  the 
said  bond  had  been  taken.  The  note  was  renewed  several  times, 
till  at  length  T.  Walker  informed  E.  Walker  that  he  could  not  re- 
new the  note.  The  cashier  informed  E.  Walker,  who  had  other 
notes  discounted  there,  that  his  notes  were  lying  over,  and  that  it 
was  necessary  to  have  new  notes,  to  which  he  answered,  that  T. 
Walker  declined  renewing :  that  it  was  not  necessary  to  have  a 
new  note  from  T.  Walker,  as  he  was  drawer  and  was  sufficient. 
The  note  on  which  this  suit  was  brought,  which  was  the  last  of 
the  renewed  notes,  remained  in  the  bank,  Walker  6r  George  paying 
the  discount  from  time  to  time,  as  it  became  due,  until  near  the 
27th  January,  1819,  when  Walker  fy  George  failed,  and  made  an 
assignment.  A  few  weeks  previous  to  the  assignment,  the  Bank 
requested  E.  Walker  to  obtain  a  new  note  from  T.  Walker,  so  as  to 
have  the  said  note  renewed  according  to  the  order  of  banking  in- 
stitutions. E.  Walker  accordingly  applied  to  T.  Walker,  but  he 
positively  refused,  and  would  not  sign  a  new  note.  The  day  be- 
fore the  assignment  a  deputation  from  the  Bank  waited  on  E.  Wal- 
ker, and  inquired  of  him,  why  he  did  not  have  the  note  renewed ; 
he  assigned  as  the  reason  T.  Walker's  refusal.  At  this  time  T. 
Walker  had  notice,  that  the  note  was  unpaid :  but  there  was  no 
proof  that  he  knew  it  before.  E.  Walker,  when  the  first  note  was 
given,  was  a  director  of  the  bank  and  continued  such  till  the  time 
of  his  assignment.  No  part  of  the  bond  had  ever  been  paid  to  T. 
Walker,  nor  any  demand  made  upon  him. 

The  plaintiff  requested  the  court  to  charge  the  jury  on  several 
points. 

1  st.  That  where  a  note  is  drawn,  in  the  form  of  the  note  upon 
which  this  suit  is  brought,  the  maker  is  not  discharged,  by  the 
holder's  giving  time,  or  accepting  interest,  or  part  payment,  from 
the  indorser,  where  the  holder,  or  plaintiff,  paid  value  for  the  note. 


March,  1823.]  OF  PENNSYLVANIA.  2  31 

(Bank  of  Mongomery  County  v.  Walker.) 

2d.  That  in  a  suit  brought  on  such  a  note,  by  the  holder  against 
the  maker,  the  maker  is  not  discharged,  by  the  holder's  receiving  a 
part,  or  interest  upon  the  whole,  from  the  indorser,  and  giving 
him  time,  even  if,  as  between  the  maker  and  indorser,  it  was  an 
accommodation  note,  unless  express  notice  was  given  the  holder  of 
the  note,  before  he  paid  value  for  it,  that  it  was  an  accommodation 
note. 

3d.  That  in  a  suit  brought  as  above  stated  in  No  2.  the  maker 
is  not  discharged,  if  the  holder  has  received  a  part  payment,  or  a 
payment  of  interest  from  the  indorser,  and  has  given  him  time, 
even  if  in  fact  as  between  the  maker  and  indorser  the  said  note 
was  an  accommodation  note,  and  notice  thereof  was  at  any  time 
given  to  the  holder  by  the  maker,  provided  the  holder  paid  value 
for  said  note. 

The  President  of  the  court  charged  the  jury,  that  the  material 
point  for  the  jury  to  consider  was,  whether,  when  the  note  on 
which  this  action  was  founded  became  due,  or  about  that  time, 
and  when  the  plaintiffs  and  Enoch  Walker  made  the  arrange- 
ment, of  which  he  testified,  the  plaintiff's  knew  it  to  be  an  ac- 
commodation note.  If  from  the  evidence,  the  jury  were  of 
opinion,  that  they  did,  the  plaintiffs  then  stood  in  the  situation  of 
creditors,  having  Walker  and  George  for  their  principal  debtors, 
and  Thomas  Walker,  the  defendant,  as  their  surety,  and  the  case 
must  be  determined  not  on  the  principle  relating  to  negotiable  notes, 
but  on  those  regulating  the  relation  of  creditors,  principals  and 
and  sureties.  A  creditor  thus  situated,  while  he  remains  passive, 
retains  all  his  rights,  and  the  surety,  whether  he  be  the  obligor  in 
a  bond,  the  maker  of  an  accommodation  note,  or  the  indorser  of  a 
note  of  business  fixed  with  demand  and  notice,  is  liable  to  the  cre- 
ditor, for  any  length  of  time,  short  of  that  fixed  by  legal  presump- 
tion, or  by  the  act  of  limitations.  But  he  must  be  careful  how  he 
acts  ;  for  if  without  the  knowledge  or  participation  of  the  surety 
he  makes  any  new  agreement  with  the  principal  debtor,  for  instance, 
if  he  receives  part,  and  gives  further  time  for  the  rest,  the  surety  is 
discharged.  The  court  were,  therefore,  >  of  opinion,  that  if  the 
plaintiffs  knew,  at  or  about  the  time  the  note  in  question  fell  due, 
and  when  they  made  the  arrangement,  of  which  Enoch  Walker  testi- 
fied, that  it  was  an  accommodation  note,  their  conduct  in  making 
and  continuing  that  arrangement,  as  detailed  in  the  deposition  of 
Enoch  Walker,  without  the  knowledge  or  consent  of  the  defen- 
dant, for  a  period  of  near  twelve  months,  and  until  the  failure  of 
Walker  8f  George,  operated  in  point  of  law,  as  a  discharge  of  the 
defendant,  and  if  the  jury  were  satisfied,  from  the  evidence,  that 
the  plaintiffs  did  then  possess  such  knowledge,  let  them  have  de- 
rived it  from  what  source  they  might,  their  verdict  must  be  for  the 
defendant.  The  plaintiffs,  thereupon,  excepted  to  the  charge  of  the 
court. 

Tilghman,  for  the  plaintiff  in  error.  This  record  involves  two 
questions.     First,  whether  the  indorser  of  the  note  in  question  can 


232  SUPREME  COURT  [Philadelphia, 

(Bank  of  Mongomery  County  v.  Walker.) 

be  a  witness  to  prove  the  circumstances  set  up  by  the  defendant  as 
a  discharge.  Second,  whether  these  circumstances,  if  duly  proved, 
amount  to  a  discharge  of  the  defendant. 

1.  The  party  to  a  negotiable  instrument  is  not  a  competent  wit- 
ness to  prove  circumstances  that  occurred  before  the  making  of 
the  note,  in  order  to  destroy  its  legal  obligation.  In  Pennsylva- 
nia, the  law  has  been  uniform  in  following  the  decision  in  Wal- 
ton v.  Shelly,  1  T.  R.  as  modified  by  Bent  v.  Baker,  3  T.  R.  35, 
that  a  party  to  a  negotiable  instrument  shall  not  be  a  witness  to 
impeach  it.  In  Stille  v.  Lynch,  2  Ball.  194,  in  an  action  by  the 
indorsee  against  the  drawer  of  a  promissory  note,  the  indorser  was 
not  allowed  to  prove  that  the  note  was  originally  given  without 
consideration.  In  Pleasants  v.  Pemberton,  2  Ball.  196,  the  rule  was 
recognised  by  the  Supreme  Court,  that  the  party  to  a  negotiable 
paper  shall  not  be  permitted  to  invalidate  it :  and  this  rule  was 
recognised  also  in  Baring  v.  Shippen,  2  Binn.  165,  where  the 
Chief  Justice  says,  the  law  has  since  that  case  been  considered 
as  settled.  Chase,  J.  in  Wilson  v.  Lenox,  1  Cranch.  201,  says, 
that  upon  the  statute  of  usury,  gaming,  and  the  like,  but  in  no  other 
case,  are  the  drawers,  indorsers,  &c.  competent  witnesses:  and 
the  cases  all  show  it.  The  rule  adopted  by  the  courts  of  New  York 
and  Massachusetts,  is  the  same  with  that  of  Pennsylvania,  that  a 
party  to  a  negotiable  instrument  is  incompetent  to  prove  it  to  have 
been  originally  void.  1  Phill.  Ev.  35,  2d  ed.  note.  But  a  further 
objection  to  the  indorsers  being  witnesses  is,  that  they  are  inte- 
rested ;  because,  although  for  the  amount  of  the  note,  they  are 
liable  to  either  plaintiff  or  defendant,  yet  if  the  Bank  had  recovered 
in  this  suit,  the  indorsers  would  have  been  liable  to  the  defendant, 
for  the  costs  of  this  suit.  This  point  was  expressly  decided  in  the 
case  of  Jones  v.  Brooke,  4  Taunt.  461.  Phill.  Ev.  49,  50,  where  in 
an  action  by  the  indorsee  against  the  acceptor  of  a  bill  of  exchange 
which  had  been  accepted  for  the  accommodation  of  the  drawer, 
the  drawer  was  held  not  to  be  a  competent  witness  for  the  defen- 
dants to  prove  that  the  holder  took  the  bill  for  a  usurious  consider- 
ation, because  the  drawer  would  be  liable  to  the  acceptor  in  case 
of  recovery  in  this  suit,  not  only  for  the  principal  sum,  but  also 
for  all  damages  sustained  by  the  suit.  To  the  same  effect  is  the 
case  of  Goodacre  v.  Beame,  Peake's  N.  P.  C.  174.  cited  1  Phill.  Ev. 
49,  50.     Chitty  on  Bills,  530. 

2.  The  court  below  erred  in  charging  the  jury,  that  if  the  Bank, 
at  or  about  the  time  the  note  fell  due,  and  when  the  arrangements 
between  them  and  E.  Walker  were  made,  knew  that  the  note  was 
an  accommodation  note,  their  conduct  operated  as  a  discharge  of 
the  indorser.  We  contend,  that  when  the  Bank  discounted  the 
note,  the  nature  of  the  note,  and  the  liability  of  the  parties  were 
fixed,  and  the  subsequent  events  could  not  affect  the  responsibility 
of  the  indorser.  Dingwall  v.  Dunster,  1  Doug.  247,  the  holder 
of  a  bill  of  exchange  received  interest  from  the  drawer  for  some 


March,  1823.]  OF  PENNSYLVANIA.  233 

(Bank  of  Montgomery  County  v.  Walker.) 

time  after  the  bill  was  payable  by  the  acceptor,  and  suffered  several 
years  to  elapse  without  calling  on  the  acceptor,  yet  it  was  held  that 
nothing  but  an  express  agreement  could  discharge  the  acceptor. 
Ellis  v.  Galindo,  1  Doug.  250,  note.  Laxton  y.  Peat,  2  Camph.  184, 
is  a  Nisi  Prius  case,  where  Lord  Ellenborough  decided  merely, 
that  if  the  holder  of  an  accommodation  bill  receive  part  payment 
from  the  drawer,  and  give  him  time,  having  had  notice  when  he 
received  it,  of  the  circumstances  of  its  original  formation,  the  ac- 
ceptor is  discharged.  This  case  however  was  doubted  by  Gibbs, 
J.  in  Kerrison  v.  Cooke,  3  Campb.  362,  and  an  exception  to  it  is 
there  founded  on  the  circumstance  of  the  acceptor  promising  to 
pay  when  the  bill  became  due,  and  Laxton  v.  Peat  was  expressly 
overruled  by  the  Court  of  Common  Pleas,  in  Fentum  v.  Pocock,  5 
Taunt.  192.  (1  Serg.  fy  Lowb.  72.)  by  whom  it  was  held,  that  the 
holder  taking  a  cognovit  from  the  drawer,  payable  by  instalments, 
did  not  discharge  the  acceptor  of  a  bill ;  and  that,  whether  the 
holder,  at  the  time  of  taking  the  bill,  knew  it  was  an  accommoda- 
tion bill  or  not.  Carstairs  v.  Rolleston,  5  Taunt.  551.  (1  Serg.  Sf 
Lowb.  184,)  confirms  this  decision.  In  the  Governor  and  Company 
of  the  Bank  of  Ireland  v.  Beresford,  6  Dow's  Part.  Cas.  234,  a  bill 
of  exchange  was  accepted  for  the  accommodation  of  the  drawer, 
which  circumstance  was  known  to  the  holder  when  he  received  it, 
and  time  was  given  to  the  drawer,  yet  the  acceptor  was  held  not  to 
be  discharged,  and  the  case  of  Fentum  v.  Pocock  was  there  cited 
by  Eldox,  Chancellor.  Nothing  discharges  the  acceptor  but  pay- 
ment or  release.  He  also  cited  Mallet  v.  Thompson,  5  Esp.  N, 
P.  C.  179.  Brown  v.  Mott,  7  Johns.  361.  Chitt.  on  Bills,  381, 
382. 

Condy,  contra. 

1.  The  court  below  only  decided  that  the  deposition  was  evi- 
dence for  certain  purposes,  and  to  that  opinion  the  plaintiff  except- 
ed. If  there  were  other  matters  in  the  deposition  which  according 
to  the  court's  opinion  would  not  be  evidence,  it  was  the  business  of 
the  counsel  to  move  to  have  them  struck  out.  The  question  then 
is,  whether  the  witnesses  were  incompetent  to  prove  the  facts  for 
which  they  were  offered.  And  the  furthest  the  courts  of  this  country 
have  gone  is,  to  hold  that  a  party  to  a  negotiable  instrument  is  in- 
competent to  prove  it  to  have  been  originally  void  ;  but  he  may 
testify  to  subsequent  facts  which  do  not  prove  this,  as  for  instance, 
payment.  See  the  cases  collected  1  Phill.  Evid.  34.  In  the  pre- 
sent case  the  indorsers  were  called  to  prove  circumstances  happen- 
ing after  the  giving  of  the  note,  not  the  invalidity  of  it  ab  origine ; 
they  were  therefore  completely  within  the  established  rule.  The 
argument  that  the  indorsers  were  interested  because  they  would  in 
a  suit  by  the  defendant  be  liable  to  costs  in  addition  to  the  amount 
of  principal  and  interest  recovered,  is  unfounded,  because  they 
might  allege  that  the  defendant  was  not  bound  to  stand  suit:  he 
took  defence  on  a  ground  peculiar  to  himself,  in  which  they  were 

vol.  ix.  2  G 


234  SUPREME  COURT  [Philadelphia, 

(Bank  of  Montgomery  county  v.  Walker.) 

not  concerned.  At  any  rate  the  interest  is  contingent,  because  it 
is  uncertain  whether  the  indorser  would  or  would  not  be  compelled 
to  pay  the  costs,  and  a  contingent  interest  never  incapacitates  a 
witness.     1  Pet.  305,  Willings  v.  Consequa. 

2.  The  indorsers  stood  in  the  light  of  sureties,  and  the  surety  is 
always  discharged  if  time  be  given  to  the  principal,  or  the  nature 
of  the  obligation  be  changed.  2  Ves.  Jr.  540,  544.  7  Johns.  332. 
Cope  v.  Smith,  8  Serg.  fy  Rawle,  110.  There  is  no  ground  for  dis- 
tinction between  a  surety  in  a  bond  and  a  surety  on  a  note  or  bill 
of  exchange.  The  character  of  an  indorser,  and  the  conduct  of 
the  holder  of  a  note,  will  be  looked  into  to  do  justice  in  particular 
cases.  In  Ellis  v.  Galindo,  1  Doug.  250,  the  holder  received  part 
from  the  drawer  of  a  bill,  and  took  his  written  promise  for  the  ba- 
lance, payable  in  three  months ;  after  three  years  the  acceptor  was 
sued,  and  it  was  held  that  he  was  discharged.  Laxton  v.  Peat  is 
an  authority  in  our  favour :  and  it  was  followed  by  Lord  Ellen- 
borough,  in  Collet  v.  Hay,  3  Camp.  362.  In  Carstairs  v.  Rolleston, 
5  Taunt.  551.  (1  Serg.  fy  Lowb.  184,)  Gibbs,  J.  says  they  give  no 
opinion  what  would  be  the  case  on  a  note,  where  the  holders  origi- 
nally had  notice  that  it  was  given  without  consideration.  The 
case  in  6  Dow,  is  a  Chancery  case,  which  is  not  always  to  be  re- 
lied on  for  the  law  merchant,  and  that  in  5  Esp.  N.  P.  C.  178,  is  not 
to  the  purpose,  because  it  turns  on  the  construction  of  a  writing. 
In  England  there  is  a  distinction  between  promissory  notes  and 
bills  of  exchange,  and  much  more  so  in  Pennsylvania,  where  unless 
in  cases  provided  for  by  act  of  assembly,  the  consideration  of  a 
promissory  note  could  be  inquired  into.  The  English  cases  show, 
that  the  courts  wished  to  discourage  the  practice  of  accommoda- 
tion bills,  not  notes.  In  Pennsylvania  it  wras  an  object  to  facilitate 
loans  by  banks  on  promissory  notes.  This  appears  from  the  in- 
junctions in  the  act  of  regulating  banks,  sect.  9,  {Purd.  Dig.  59,)  re- 
quiring the  banks  to  make  loans  on  bond,  mortgage,  note,  &c. 
The  question  then  is,  whether  the  court  will  tolerate  such  conduct 
in  banks  as  amount  to  fraud.  In  this  case,  though  the  bank  was 
informed,  that  the  defendant,  the  drawer,  would  not  renew  it,  they 
yet  gave  time  to  the  indorsers,  by  repeated  acts,  not  by  actually 
renewing  the  note,  but  by  receiving  the  discount  as  if  there  had 
been  a  renewal :  and  this  was  done  for  the  period  of  a  year,  and 
until  the  indorsers  became  bankrupt.  When  the  bank  agreed  that 
the  money  should  remain  sixty  days  more  in  the  hands  of  the  in- 
dorser, no  action  could  be  supported  during  these  sixty  days 
against  the  drawer,  nor  could  the  drawer  have  paid  the  money  to 
the  bank,  and  brought  his  action  against  the  indorsers  during  that 
time. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.     This  was  an  action  against  the  defendant,  drawer 


March,  1823.]  OF  PENNSYLVANIA.  235 

(The  B;ink  of  Montgomery  County  v.  Walker.) 

of  a  promissory  note,  made  payable  to  Walker  8?  George,  at  the 
Bank  of  Montgomery  county,  and  by  them  indorsed  to  that  Bank. 

The  defence  set  up  was,  that  the  defendant  had  only  lent  his  name 
to  accommodate  Walker  #  George,  without  any  other  consideration 
than  their  bond  given  to  him  on  the  same  day,  and  for  the  same 
sum;  that  Enoch  Walker,  one  of  the  indorsers,  was  a  director  of 
the  bank  ;  that  the  note  was  drawn  as  a  note  of  business,  and  was 
presented  to  the  board  of  directors,  in  the  manner  in  which  it  was 
written,  and  discounted  by  the  board  accordingly.  Nothing-  was 
said  of  its  being-  an  accommodation  note  at  the  time  it  was  discount- 
ed. The  note  was  indorsed  by  Walker  <$•  George  to  the  Bank, 
who  paid  the  full  value.  The  note  was  renewed  several  times ;  at 
length  the  defendant  informed  Walker  fy  George,  that  he  would 
renew  it  no  longer,  of  which  they  informed  the  Bank.  The  last 
note  remained  in  the  Bank  for  upwards  of  a  year  unrenewed,  and 
until  a  few  weeks  before  the  indorsers  made  a  general  assignment 
to  their  creditors.  They  continued  to  pay  the  regular  discounts,  as 
if  the  note  had  been  renewed.  The  cashier  of  the  Bank  informed 
them,  that  it  would  be  proper  to  have  the  note  renewed  by  Thomas 
Walker,  to  which  they  replied,  that  it  was  unnecessary,  as  Thomas 
Walker  was  the  drawer.  Thomas  Walker  had  not  any  notice  of 
the  non-payment  until  he  was  called  on  to  renew  it,  before  their  as- 
signment. The  bond  still  remained  in  Thomas's  hands  unpaid,  nor 
has  he  demanded  payment. 

The  defendant  contended,  that  by  the  Bank's  not  giving  notice 
to  Thomas  Walker  of  the  non-payment,  and  receiving  the  interest 
or  discount,  as  if  the  note  had  been  renewed,  by  this  delay  and 
giving  of  time  to  the  indorsers,  the  defendant  was  discharged,  as  he 
stood  only  in  the  situatiou  of  a  surety,  and  was  not  the  primary 
debtor. 

To  make  out  this  defence,  Enoch  Walker  and  Thomas  George, 
the  indorsers,  were  offered  as  witnesses.  An  objection  was  made  to 
their  competency,  as  being  parties  to  this  negotiable  instrument, 
and,  therefore,  excluded,  by  the  policy  of  the  law,  from  giving 
evidence  to  impeach  it,  and  because  they  were  interested.  The 
court  admitted  them,  and  a  bill  of  exceptions  was  taken.  The 
court  charged  the  jury  in  favour  of  the  defendant,  in  substance 
stating,  "  that  the  material  point  for  the  consideration  of  the  jury 
was,  whether  ivhen  the  note  became  due,  or  about  that  time, 
and  when  the  arrangement  was  made,  accepting  from  the  in- 
dorsers the  discount,  without  the  knowledge  of  the  defendant,  the 
Bank  knew  it  to  be  an  accommodation  note,  no  matter  from  which 
source  they  received  the  information  ;  and  if  the  jury  so  found,  this 
in  point  of  law  was  a  discharge  of  the  defendant.  For  the  Bank 
stood  in  the  situation  of  creditors,  having  Walker  <§'  George  as  the 
priucipal  debtors,  and  Thomas  Walker,  the  defendant,  as  their 
surety,  and  it  was  not  then  to  be  determined  on  the  principles  re- 
gulating negotiable  notes,  but  on  those  regulating  the  relation  of 


236  SUPREME  COURT  [Philadelphia, 

(The  Bank  of  Montgomery  County  v.  Walker.) 

debtors,  as  principal  and  sureties."  And  to  this  charge  the  plaintiffs 
excepted.  Our  attention  is  first  called  to  the  inquiry,  whether,  ad- 
mitting- the  allegation  of  the  defendant,  if  proved,  to  be  a  defence 
in  the  action,  the  indorsers  were  competent  witnesses  to  prove  it, 
either  on  the  ground  of  general  policy,  or  legal  incompetency  from 
interest  in  the  event  of  the  action.  The  principle  in  the  case  of 
Walton  v.  Shelly,  that  a  party  to  a  negotiable  instrument  shall 
not  be  allowed  to  give  evidence  to  invalidate  it,  has  been  recognised 
too  frequently  and  too  solemnly,  now  to  be  departed  from,  and 
though  the  objection  has  been  confined  within  very  narrow  limits  by 
subsequent  decisions  in  England,  yet  it  has  not  been  shaken  in 
this  court,  but  has  been  restrained  to  negotiable,  instruments,  pro- 
perly so  called,  and  negotiated  in  the  ordinary  course  of  business 
before  due.  Pleasants  v.  Pleasayits,  2  Dull.  196.  Baring  v. 
Shippen,  2  Binn.  154.  MlFerran  v.  Poivers,  1  Serg.  <£•  Rawle, 
102,  and  4  Serg.  fy  Rawle,  397,  Baird  v.  Cochran.  This  objection 
would  not  now  prevail  in  England:  for  in  Jones  v.  Brooke,  4 
Taunt,  464,  it  was  decided  that  an  action  against  the  acceptor, 
of  a  bill  for  the  accommodation  of  the  drawer,  the  drawer  would  not 
be  rejected  on  that  ground  :  that  it  is  now  the  practice  to  receive 
persons  whose  names  are  on  the  bills  of  exchange  to  impeach  them, 
though  the  witness  was  rejected  on  the  second  ground  taken  here, 
his  incompetency  on  account  of  interest. 

The  witnesses  here  were  offered  to  prove,  what  in  contemplation 
of  law  was  fraud  on  the  plaintiffs  committed  by  them  in  giving  cur- 
rency to  this  note,  by  their  names,  as  a  note  of  business.  In  the 
case  of  Fen  turn  v.  Pocock,  5  Taunt.  192,  1  Serg.  <§•  Loiub.  72, 
it  was  declared  that  whoever  draws  an  accommodation  bill,  and  pro- 
cures another  to  accept  it,  and  negotiates  it  without  letting  the  per- 
son know  to  whom  he  passes  it,  is  guilty  of  a  gross  fraud.  The 
law  of  this  state  is,  that  though  a  party  to  such  paper  may  be  re- 
ceived to  prove  subsequent  facts,  to  discharge  the  note,  yet  he  shall 
not  be  received  as  a  witness  to  show  that  it  was  in  truth  and  in  fact 
not  what  the  instrument  it  purported  on  its  face  to  be  ;  in  other 
words,  he  shall  not  be  permitted  to  impeach  it,  or  to  prove  it  to  be 
other  than  the  paper  itself  states;  and  such  was  the  decision  of  the 
court  in  Baird  v.  Cochran,  4  Serg.  <§•  Raiole,  397. 

For  this  reason  it  is  the  opinion  of  the  court,  these  indorsers  were 
not  competent  witnesses,  as  their  evidence  tended  to  show,  that  the 
note  was  different  from  what  it  represented  itself  to  be,  the  condition 
of  the  parties  to  it  reversed,  and  their  liabilities  different;  and  be- 
cause the  evidence  went  to  show  a  fraud  committed  on  the  indorsee, 
as  to  the  foundation  and  origin  of  the  instrument  in  its  creation,  and 
a  fraud  in  passing  it  to  them,  and  shall  not  be  received  to  impeach 
that  which  they  gave  currency  to  by  their  names. 

But  were  they  incompetent  witnesses,  because  they  were  inte- 
rested?    It  is  true,  they  would  be  equally  liable  to  the  plaintiffs  and 


March,  1823.]  OF  PENNSYLVANIA.  237 

(The  Bank  of  Montgomery  County  v.  Walker.) 

defendant  for  the  debt  and  interest ;  but,  if  Thomas  Walker  is  cast 
in  this  action,  he  could  recover  from  them,  not  only  that  amount, 
but  all  his  costs  and  expenses  in  the  action :  whereas,  if  the  Bank 
is  cast,  only  the  amount  of  debt  and  interest,  and  not  the  costs  of 
this  action  could  be  recovered  by  the  Bank  from  them :  and  whe- 
ther this  liability  for  costs  makes  any  difference,  destroys  the  equi- 
librium of  interest  in  the  event,  is  the  question. 

There  has  been  diversity  of  opinion  and  decisions ;  for  in  Ilder- 
ton  v.  Atkinson,  7  T.  R.  480,  and  Birt.  v.  Kershaw,  2  East.  458,  it 
was  decided,  that  an  indorser  on  a  note,  who  has  received  the  mo- 
ney from  the  drawer,  in  an  action  by  the   indorsee  against  him, 
may  be  admitted  to  prove  payment  of  the  note,  being  either  way 
liable  on  the  note  ;  if  the  action  was  defeated,  to  the  plaintiff*  on  the 
note,  or  to  the  defendant  in  an  action  for  not  indemnifying,  if  the 
action  succeeded,  and   his  being  liable  in  the  latter  case  to  com- 
pensate the  defendant  for  the  costs  accrued  in  the  action  by  such 
non-payment,  made  no  difference.     But  in  Jones  v.  Brook,  4  Taunt. 
464,   in   action  against  the  acceptor  of   a  bill,  accepted  for  the 
accommodation  of    the    drawer,    the    drawer  was    held    not    a 
competent  witness,  to  prove  the  holder  came  to    the  bill   on  a 
usurious   consideration,   because  he   does  not  stand    indifferently 
both  to  the  holder  and  acceptor;  for  the  holder  can  only  recover 
against  him  the  contents  of  the  bill;  but  the  acceptor  is  entitled 
to  recover  both  the  amount  of  the  bill,  and  all  the  damages  he 
may  have  sustained,  including    the  costs  of   the   action    against 
him.     And  Philips  in  his   Treatise  on  Evidence,  47,  considers  the 
law  now  so  settled,  and  indeed,  it  is  consistent  with  common  sense, 
and  the  inflexible  rule  of  evidence,  that  interest  in  the  event  of  the 
suit  disqualifies.     But  if  the  bond  given  to   Walker,  was  a  bond  of 
indemnity,  it  is  certainly  adding  to  the   quantum  of  damages  the 
amount  of  the  costs.     In  Coides  v.  Wilcox,  4  Day.  108,  in  an  ac- 
tion  against  the  indorser  of  a  promissory  note,  the   maker,  for 
whose  accommodation  the  defendant  indorsed  the  note,  and  who 
had  executed  a  mortgage  to  the  defendant  as  security,  was  held 
to  be  an  inadmissible  witness  for  the  defendant,  to  support  the  de- 
fence, being  interested  in  the  defence  of  the  suit.     The  ground  of 
defence  here,  and  in  accordance  with  that  was  the  opinion  of  the 
court,  was,  that  the  case  must  not  be  determined  on  principles  regu- 
lating negotiable  instruments,  but  the  relation  of  debtors,  principal 
and  sureties ;  that  Walker  was  only  the  surety,  and  Walker  <$•  George 
the  principals.     If  so,  then  Riddle  v.  Moss,  7  Cranch,  306,  decides 
that  question.     For  it  was  determined,  that  the  principal  obligor  in 
a  bond,  is  not  a  competent  witness  for  the  surety  in  an  action  on 
that  bond,  the  principal  being  liable  to  the  surety  for  costs,  in  case 
the  judgment   should   be   against    him.     The  principal's  liability 
would  be  increased  to  the  extent  of  the  costs  of  the  suit.     On  the 
objection  to  the  witnesses'  competency  on  account  of  their  interest, 
they  should  have  been  rejected. 

But  admit  they  were  competent,  and  the  defendant  had  fully 


238  SUPREME  COURT  [Philadelphia, 

(The  Bank  of  Montgomery  County  v.  Walker.) 

proved  his  allegation,  and  it  is  but  justice  to  say,  that  the  testimony 
appears  to  have  been  very  candidly  given,  and  to  bear  the  impress 
of  truth,  did  that  discharge  him  in  point  of  law?  I  think  not. 
There  is  one  circumstance,  and  that  not  an  unimportant  one,  which 
distinguishes  this  from  all  the  cases  that  the  counsel  for  the  defen- 
dant has  relied  on.  The  defendant  took  for  security  his  bond  of  in- 
demnity, when  he  gave  this  note  to  Walker  fy  George  ;  the  bond 
was  given  in  exchange  for  the  note  ;  he  retains  this  security, 
and  though  it  may  be  but  a  slender  one,  he  thought  it  sufficient, 
when  he  accepted  it.  But  dismissing  that  consideration,  how  stands 
it,  on  the  instrument,  and  on  the  indorsement  ?  The  drawer  of  a 
promissory  note,  and  the  acceptor  of  a  bill  of  exchange,  stand  in 
the  same  situation.  The  acceptor  of  the  bill,  and  the  drawer  of  the 
note,  are  in  the  light  of  principals,  the  indorsers  of  securities.  On 
the  face  of  the  instrument  Thomas  Walker  was  the  principal,  Wal- 
ker fy  George  the  securities,  when  they  indorsed  it ;  T.  Walker  the 
primary  debtor,  Walker  fy  George  collaterals.  When  the  note  was . 
indorsed,  it  passed  into  the  defendant's  hands,  as  a  business  note; 
it  was  drawn  in  that  form  :  it  was  negotiated  in  that  form ;  it  as- 
sumed that  shape  to  serve  the  purpose  of  Walker  Sf  George.  No 
communication  to  the  bank  when  they  discounted  and  paid  the  mo- 
ney to  Walker  Sf  George,  that  it  was  an  accommodation  note.  The 
respective  rights  and  liabilities  of  the  parties,  taking  the  note  by 
what  it  represented  itself  to  be,  were  then  fixed.  It  is  clear,  that 
nothing  but  satisfaction  of  the  debt,  or  absolute  renunciation  of 
it,  could  discharge  the  drawer.  Time  given  to  the  drawer  might 
discharge  the  indorser.  Notice  of  non-payment  not  being  given 
to  him  might  have  the  same  effect :  but  time  given  to  the  indorser 
could  not  dischage  the  drawer.  Notice  of  non-payment  by  the 
indorser  was  not  necessary ;  it  was  his  business  to  look  to  the  pay- 
ment. Laxton  v.  Peat,  2  Carnpb.  185,  to  which  the  defendant  in 
error  has  clung,  will  afford  him  no  sanctuary :  for  that  was  de- 
cided on  the  very  principle,  that  when  the  indorsement  was  made, 
the  indorser  knew  it  was  without  consideration.  It  was  within 
the  knowledge  of  all  the  parties,  that  the  bill  was  an  accommoda- 
tion bill,  and  the  acceptor  security  only  ;  but  here  all  is  the  reverse. 
But  that  nisi  prius  dicision  has  been  abandoned,  overruled,  and  con- 
sidered to  be  one  of  the  very  few  mistakes  made  by  Lord  Ellen- 
borough,  at  nisi  prius.  Fentum  v.  Pocock,  5  Taunt.  192.  1 
Serg.  4-  Rawle,  Ah.  72.  1  Marshall's  Rep.  14.  And  in  that  case, 
that  the  error  might  be  done  away,  the  court  took  pains  to  put  the 
matter  to  rest,  and  to  settle  the  law  on  some  firm  basis.  That  de- 
cision was,  that  if  the  holder  of  a  bill  of  exchange,  accepted  for  ac- 
commodation of  drawer,  takes  a  cognovit  from  the  drawer  payable 
by  instalments,  that  does  not  discharge  the  acceptor ;  and  that  it 
would  subvert  and  pervert  the  situation  of  the  parties,  to  make  the 
acceptor  merely  a  surety.  Here  the  person  taking  it  did  not  know 
that  it  was  an  accommodation  bill ;  and  if  he  did  not  then  know  it, 


March,  1823.]  OF  PENNSYLVANIA.  239 

(The  Bank  of  Montgomery  County  v.  Wulker.) 

what  does  it  signify  what  came  to  his  knowledge  afterwards,  if  he 
took  the  bill  for  a  valuable  consideration  ?  But  Chief  Justice  Mans- 
field said,  it  was  better  not  to  rest  the  case  on  that  foundation,  for  it 
appeared  to  him,  that  if  the  holder  had  known  in  the  clearest  man- 
ner, at  the  time  of  taking  it,  it  was  an  accommodation  bill,  it  would 
make  no  manner  of  difference ;  for  he  who  accepts  a  bill,  whether 
for  value,  or  to  serve  a  friend,  makes  himself  liable  at  all  events  as 
acceptor,  and  nothing  can  discharge  him  but  payment,  or  a  release. 
And  to  this,  Heath,  Justice,  added,  denying  the  authority  of  Lord 
Ellenborouh's  decision  in  Campbell's  Reports,  whoever  draws 
an  accommodation  bill,  and  procures  another  to  accept  it,  and  ne- 
gotiates it  without  letting  the  person  know  to  wliom  he  passes  it, 
that  it  is  an  accommodation  bill,  is  guilty  of  a  gross  fraud,  and  the 
holder  shall  not  be  in  a  worse  situation  for  the  fraud  practised  on 
him.  And  in  5  Taunt.  551.  1  Serg.  8f  Rawle,  184.  1  Marsh. 
207.  Carstairs  v.  Rolleston.  If  A.  gives  B.,  without  considera- 
tion, a  promissory  note,  to  be  negotiated  by  B.  as  a  security  for 
money,  and  the  indorser  for  a  valuable  consideration,  without  no- 
tice, releases  B.  from  the  note,  and  all  claim  on  it,  this  does  not  so 
extinguish  the  consideration  of  the  note,  but  that  the  indorsee  may 
still  recover  against  the  maker:  but  the  court  would  give  no  opinion, 
what  might  be  the  case  on  a  note,  where  the  holder  originally  had 
notice  it  was  given  without  consideration  :  and  Chitty  in  his  Trea- 
tise on  Bills,  {Judge  Story's  Ed.  312, )  says,  that  the  case  of  Fen- 
turn  v  Pocock,  is  now  the  settled  doctrine.  Judge  Story  has  sub- 
joined, in  a  note,  all  the  cases  on  the  subject.  These  clearly  es- 
tablish, that  in  this  respect  there  is  no  distinction  between  bills  and 
notes  in  the  ordinary  course  of  business,  and  accommodation  paper. 
Lord  Chancellor  Eldon  speaks  of  the  decision  in  Fentum  v.  Pocock, 
with  entire  approbation :  he  observes,  the  principle,  with  a  view  to 
the  benefit  of  commercial  intercourse,  is  a  very  wholesome  one  : 
you  will  not  inquire  into  the  knowledge  of  the  parties,  but  all  shall 
be  taken  according  to  the  natural  effect  of  the  bill,  as  appears  on  the 
face  of  it,  and  never  to  hold  that  the  acceptor  was  not  first  liable. 
6  Dow,  287. 

Laxton  v.  Peat,  is  the  only  case  in  which  it  was  ever  held,  that 
time  given  to  the  drawer  discharged  the  acceptor,  even  on  an  ac- 
commodation bill,  and  against  this  solitary  decision  at  Nisi  Prius, 
we  have  the  union  of  sentiment,  and  decision  of  Chief  Justice 
Mansfield,  Justice,  Gibbs  and  Heath,  Lord  Chancellor  Eldon, 
and  all  the  Barons  of  the  Exchequer,  and  Chamber,  J.  Time 
given  by  an  indorser  to  payee  does  not  discharge  the  drawer. 
Claridge  v.  Dalton,  4  M.  #  S.  226. 

But  in  addition  to  all  these  authorities,  we  have  the  case  almost 
literatim  decided.  For  in  Perfect  v.  Musgrave,  where  the  holder 
of  a  note  drawn  by  two  jointly,  received  a  compensation  of  10  shil- 
lings in  the  pound,  from  one  of  the  makers,  held  that  the  other,  al- 
though he  had  entered  into  the  note  as  a  mere  surety,  and  which 


240  SUPREME  COURT  [Philadelphia, 

(The  Bank  of  Montgomery  County  v.  Walker.) 

was  understood  at  the  time,  was  not  discharged  by  the  receipt  of 
such  composition,  or  by  the  want  of  early  application  to  him  when 
the  note  became  due.     6  Price's  Ex.  Rep.  111. 

The  court  cannot  listen  to  the  suggestion  so  pathetically  urged 
on  their  attention,  that  T.  Walker  was  not  a  man  of  business,  or 
mercantile  knowledge,  and  unacquainted  with  the  legal  consequences 
of  what  he  did.  The  law  knows  no  standard  by  which  to  mea- 
sure the  size  of  men's  understanding  but  one,  and  that  is,  had  the 
party  reason  and  understanding  sufficient  to  enter  into  any  binding 
contract:  if  he  had,  he  is  bound  by  its  legal  consequences. 

Great  perils  always  environ  the  man  who  meddles  with  accom- 
modation  paper.     It  is  always   attended  with  trouble  :   frequently 
with  risk  to  him  who  lends  his  name.     The  man  who,  to  serve  his 
friend  lends  his  name,  as  his  debtor,  in  order  that  he  may  obtain 
money  on  that  evidence  of  debt,  cannot  complain  of  it  as  a  grievance, 
that  when  this  purpose  is  answered,  the  law  will  consider  him  just 
in  the  character  he  has  assumed.     If  drawer,  to  be  treated  as  drawer ;  * 
if  indorser,  as  indorser.     As  he  chose  to  be  introduced  into  the 
world  by  the  name  and  in  the  character  of  drawer,  he  must  be  con- 
tent to  pass  through  in  all  its  stages  under  that  name,  and  he  cannot, 
at  his  pleasure,  cast  it  off,  and  deny  it  to  any  who  has  given  credit 
to  the  paper  on  his  assumed  name  and  character.     To  such  person 
he  is  bound  by  every  obligation  of  justice  and  morality,  to  sustain  the 
character  he  has  held  himself  out  to  be.     He  shall  not  be  permitted  to 
allege  that  this  was  an  imposition,  to  which  he  gave  his  name,  nor  to 
gainsay  its  reality  by  proof,  that  it  was  a  fiction.    There  is  in  equity  an 
estoppel  much  more  conscientious  than  many  legal  estoppels,  and 
this  is  an  estoppel  of  that  kind.     Fictions  in  law  are  only  permitted 
to  support  the  justice  and  truth  of  the  case,  but  are  never  pemitted 
to  prevail  against  justice  and  against  truth.     It  never  can  be  a  just 
defence,  or  an  equitable  bar  to  a  claim,  when  the  very  foundation 
of  the  defence  is,  in  reality,  the  substantiation  of  a  falsehood,  of 
which  the  author  seeks  to  take  advantage,  and  to  relieve  himself 
from  his  own  obligation,  and  for  which  the  holder  has  bona  fide  paid 
the  full  value.     It  shall  be  taken^ro  veiitate,  that  he  was  the  drawer, 
for  de  veritate,  that  was  the  very  thing  he  was  intended  to  be.     He 
gave  his  note,  payable  to  his  friends,  to  enable  them  to  raise  money 
on  the  security  of  his  name  as  drawer  at  the  bank,  for  the  note   is 
payable  there,  and  when  it  has  served  that  purpose,  it  cannot  be 
endured  that  he  shall  say,  he  was  not  the  drawer. 

But  here  T.  Walker  knew  the  consequences,  and  took  his  secu- 
rity. But  whether  he  did,  or  did  not, matters  not;  the  contract  is  not 
impeached  on  the  weakness  of  his  understanding. 

The  charge  of  the  court  was,  therefore  erroneous.  The  cause 
was  to  be  decided  on  the  principle  of  the  instrument  being  nego- 
tiable and  negotiated,  and  the  acts  of  the  Bank  did  not  discharge 
T.  Walker  the  drawer,  neither  the  acts  of  omission  or  commission. 


March,  1823.]  OF  PENNSYLVANIA.  241 

(The  Bank  of  Montgomery  County  v.  Walker.) 

they  omitted  nothing.  This  bank  was  not  bound  to  give  him  notice 
of  non-payment  of  his  own  note.  Nor  did  the  time  given  to  the 
payees,  nor  the  receipt  of  interest  from  them  release  the  defendant 
from  his  obligation  as  drawer. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


[Philadelhia,  March,  10, 1823.] 

ANDREWS  against  ALLEN. 

IN  ERROR. 

Assumpsit  does  not  lie  by  one  partner  against  another,  unless  there  be  an  account 
actually  settled  between  themselves  and  a  balance  struck.  It  is  not  sufficient 
that  the  balance  may  be  deduced  from  the  partnership  books. 

« 

Error  to  the  District  Court  for  the  city  and  county  of  Philadel- 
phia, in  an  action  of  assumpsit,  brought  by  Joseph  Andrews  against 
Lewis  Allen,  in  which  a  verdict  and  judgment  were  had  for  the  de- 
fendant. By  the  bill  of  exceptions  to  the  charge  of  the  court,  re- 
turned with  the  record,  the  case  appeared  to  be  as  follows : 

Joseph  Andrews,  the  plaintiff,  entered  into  articles  of  copartnership 
with  Lewis  Allen,  the  defendant,  for  the  term  of  five  years  from  the 
31st  May,  1815.     Andrews  was  to  put  into  the  stock  8000  dollars, 
and  Allen  2000  dollars  ;  so  that  the  capital  of  the  partnership  would 
be  10,000  dollars ;  which  was  to  be  at  the  joint  and  equal  risk  of 
both  parties.     Neither  partner  was  to  take  out  more  than  100  dollars 
a  month,  and  each  was  immediately  to  charge  himself  in  the  part- 
nership books,  with  what  he  took  out,  which,  at  the  next  settlement 
of  accounts  was  to  be  considered  as  part  of  his  share  of  the  profits. 
Annual  settlements  were  to  be  made,  and  the  profits  equally  divided 
between  the  parties.     At  the  expiration  of  the  term  of  five  years,  a 
final  settlement  was  to  be  made,  and  all  debts  being  paid,  Jlndrews 
was  to  take  the  8000  dollars,  which  he  had  put  in,  and  Allen  the 
amount  of  what  he  had  put  in  :  after  which  the  balance  of  the  stock 
was  to  be  equally  divided  between  them.     On  the  10th  October, 
1816,  the  partners  being  insolvent,  made  a  general  assignment  of 
the  stock  in  trade,  debts  and  effects  of  the  partnership  for  the  benefit 
of  their  creditors,  who  on  the  same  day  executed  releases  to  them. 
On  the  16th  of  the  same  month  of  October,  notice  was  given  by 
public  advertisement,  that  the  partnership  was  dissolved  by  mutual 
consent.     The  debts  due  from  the  partnership  were   upwards    of 
30,000   dollars.     The   effects  were   sufficient,  after  satisfying  cer- 
tain debts  which  had  a  preference  by  the  terms  of  the  assignment, 
to  pay  41  per  cent,  on  the  amount  of  the  debts  of  the  general  cre- 
ditors. 

vol.  ix.  2H 


242  SUPREME  COURT  [Philadelphia, 

(Andrews   v.  Allen.) 

The  plaintiff  claimed  2900  dollars  6  cents,  the  one  half  of  5800 
dollars  12  cents,  which  he  alleged,  appeared  by  the  settlement  of 
the  partnership  books,  to  be  due  to  him  by  the  firm.  This  claim  was 
founded  on  the  ground  of  the  defendant's  having  taken  out  of  the  firm 
so  much  more  than  the  plaintiff,  as  to  leave  that  balance  in  favour 
of  the  plaintiff  on  the  final  settlement  of  the  partnership  accounts: 
and  he  claimed  also  on  the  ground  specifically  of  having  paid  into 
the  concern  a  bill  of  exchange  for  6000  dollars,  which  the  defen- 
dant drew  on  the  plaintiff  and  received  the  amount  of,  before  the 
articles  of  partnership.  The  declaration  contained  counts  for  money 
had  and  received,  insimul  computassent,  and  a  count  on  the  bill  of 
exchange. 

The  court  below  charged  as  follows : 

The  partnership  effects  assigned  were,  the  stock  of  the  firm  in 
trade,  the  debts  and  effects  of  the  partnership.  At  the  dissolution 
of  the  partnership,  after  its  debts  were  paid,  each  party  was  entitled 
to  his  stock  put  in  ;-  but  if  there  wTere  not  enough  to  pay  the  debts, 
the  stock  of  both  partners  must  go  to  the  creditors  ;  and  then,  if  this 
stock  were  assigned  as  the  partnership  effects,  how  could  the  plain- 
tiff be  entitled  to  it  ?  In  the  judgment  of  the  court,  he  is  not  so  en- 
titled. It  was  argued  for  the  plaintiff,  that  this  balance  of  account 
of  5800  dollars  and  12  cents  did  not  pass  to  the  assignees,  but  was  a 
private  debt  due  to  the  plaintiff  from  the  firm  of  Andrews  fy  Allen. 
But  it  was  stock  put  into  trade  for  joint  benefit,  and  instantly 
liable  for  the  debts  of  the  partnership  ;  nor  could  the  plaintiff  take 
it  out  till  the  debts  of  the  firm  were  first  paid.  According  to  the 
articles  of  association,  the  capital  was  at  the  joint  and  equal  risk 
of  the  parties,  and  after  all  the  partnership  debts  were  paid,  each 
should  take  his  stock,  but  not  before,  nor  till  the  debts  were  first 
paid.  Now  the  partnership  was  unable  to  pay  its  debts,  and  as- 
signed all  the  partnership  effects  ;  and  surely  the  stock  passed  under 
and  by  that  assignment.  If  the  plaintiff  has  been  injured,  as  he 
complains,  by  the  defendant's  drawing  out  of  the  stock  put  in,  his 
remedy  is  on  the  covenant,  if  he  has  any  remedy,  which  is  very 
questionable.  It  is  the  creditors  who  have  been  injured  ;  for  if  Allen 
had  not  withdrawn  the  funds,  they  would  have  had  the  benefit  of 
them.  Allen  certainly  has  no  money  of  the  firm  in  his  hands  ;  and 
he  did  not  undertake,  in  case  of  loss,  to  make  good  Andrews's  ca- 
pital to  him.     Wherefore  he  cannot  recover  in  this  action. 

As  to  the  demand  as  upon  an  account  stated  or  settled  between 
those  parties ;  it  is  true,  that  after  the  dissolution  of  a  partnership, 
one  partner  may  have  an  action  of  assumpsit  against  the  other  for 
such  a  balance.  In  this  case  the  partnership  was  dissolved,  and  all 
its  debts  paid  or  released  ;  and  by  the  account  appearing  in  the 
books,  it  is  said,  that  a  balance  is  due  from  the  defendant  to  the 
plaintiff.  But  the  question  is,  whether  an  account  so  appearing  is 
such  a  stated  account,  or  so  balanced,  as  that  an  action  of  assump- 


March,  1823.]  OF  PENNSYLVANIA.  243 

(Andrews  v.  Allen.) 

sit  may  be  maintained  on  it.  The  accounts  are  stated  between  the 
respective  parties,  and  the  firm,  not  between  Joseph  .Andrews 
and  Lewis  Allen  ;  and  this  action  is  for  one  half  of  the  balance  due 
from  the  firm  to  one  of  the  members  of  it,  namely,  Joseph  An- 
drews. But  an  account  stated  or  balanced  as  this  one  appears  to  be 
by  the  books,  is  not  such  an  account  stated  as  will  raise  a  promise 
or  assumpsit. 

With  respect  to  the  bill  of  exchange,  to  which  one  part  of  the 
plaintiff's  declaration  is  made  applicable,  the  money  proceeding 
from  it  was  placed  by  the  defendant  to  the  credit  of  the  firm, 
without  objection  from  the  plaintiff,  and  the  court  does  not  think 
that  on  that  point,  the  action  can  be  sustained,  as  argued  for  the 
plaintiff. 

The  plaintiff  excepted  to  the  charge  of  the  court. 

Two  questions  were  argued  in  this  court.  1.  Whether  the  de- 
fendant was  liable  at  all  to  the  plaintiff  under  circumstances  of  the 
case.  2.  Whether  the  plaintiff  could  maintain  assumpsit.  But  as 
this  court  gave  an  opinion  only  on  the  latter,  the  argument  on  the 
former  is  omitted. 

Phillips  and  C.  J.  Ingersoll,  for  the  plaintiff,  contended,  that 
the  form  of  action  was  proper,  account  render  being  necessary 
only  where  there  is  an  account  to  be  settled  between  the  partners: 
whereas,  here,  the  account  has  been  settled  from  the  partnership 
books,  and  the  balance  appears.  No  express  promise  is  necessary. 
They  cited  Morris  v.  Pugh,  3  Burr.  1241.  Gill  v.  Kuhn,  3 
Serg.  Sf  Rawle,  333.  Smith  v.  Burrow,  2  T.  R.  476.  Foster 
v.  Allenson,  2  T.  Sf  R.  479.  Meriwether  v.  Nixon,  8  T.  R.  186. 
Osborn  v.  Harper,  5  East.  225.  Ex  parte  Williams,  11  Vex.  5.  3 
Vex.  and  Beams,  36. 

J.  R.  Ingersoll  and  Chauncey,  contra,  insisted,  that  the  only 
actions  the  plaintiff  could  maintain  were  either  covenant  on  the 
articles  of  co-partnership,  or  account  render.  Assumpsit  cannot  be 
maintained  by  one  partner  against  another,  unless  there  be  an  ac- 
count stated,  and  a  balance  struck  by  themselves,  which  had  never 
been  the  case  here.  Ozeas  v.  Johnson,  1  Binn.  191.  Moravia 
v.  Levy,  2  T.  R.  483.  Foster  v.  Allenson,  2  T.  $  R.  479.  Carey 
v.  Baush,  3  Caines,  293. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  On  the  trial  in  the  District  Court,  the  jury 
were  charged,  that  the  plaintiff  was  not  entitled  to  recover,  for 
which  various  reasons  were  assigned.  To  this  charge,  the  counsel 
for  the  plaintiff  excepted,  and  the  cause  has  been  brought  before 
this  court  by  writ  of  error.  It  is  unnecessary  to  consider  all  the 
reasons  given  by  the  District  Court  in  support  of  its  opinion,  be- 
cause if  it  appears  that  for  any  reason,  the  action  is  not  maintain- 
able, the  judgment  must  be  affirmed.  Now  there  is  one  reason 
against  the  action,  which  is  irresistible.     These  partners  had  never 


244  SUPREME  COURT  [Philadelphia, 

(Andrews  v.  Allen.) 

come  to  a  final  settlement  of  their  accounts.  And  in  such  case  the 
proper  action  is  account  render — assumpsit  will  not  lie.  The  plain- 
tiff alleges  that  the  balance  may  be  deduced  from  the  partnership 
books.  But  that  is  not  sufficient.  An  actual  settlement  must  be 
made  and  a  balance  struck,  by  the  act  of  both  parties,  before  either 
can  be  charged  in  an  action  of  assumpsit.  It  is  very  possible  that  the 
books  may  not  show  the  true  state  of  the  account.  They  may  be 
false  entries,  or  omissions,  so  that  nothing  certain  can  be  deduced 
from  calculations  made  by  one  partner,  on  the  entries  appearing  on 
the  face  of  the  book,  without  the  concurrence  of  the  other.  There 
should  be  a  settlement  in  which  both  concur.  Otherwise  the  pro- 
per remedy  is  account  render.  So  was  the  law  laid  down  in  the  case 
of  Ozeas  v.  Johnson,  1  Binn.  191,  which  has  never  been  departed 
from.  It  will  be  found  that  this  principle  of  Ozeas  v.  Johnson,  is  in 
accordance  with  the  case  of  Foster  v.  Allenson,  2  T.  Rep.  479,  and 
Moravia  v.  Levy,  cited  in  the  note  to  2  T.  Rep.  483.  I  am  of 
opinion,  therefore,  that  the  judgment  of  the  District  Court  should 
be  affirmed. 

Judgment  affirmed. 


[Philadelphia,  March  24,  1823.] 

NORTH,  Sheriff,  and  others  against  TURNER  and  others. 

IN  ERROR. 

A  plaintiff  on  the  record,  in  an  action  of  trespass  de  bonis  asportatis,  may  assign  his 
interest,  and  become  a  witness.  But,  it  seems,  that  a  plaintiff  in  slander,  assault 
and  battery,  or  criminal  conversation  could  not. 

An  assent  to  an  assignment  to  absent  persons  will  be  presumed,  where  it  is  made 
for  a  valuable  consideration,  and  is  beneficial  to  them. 

A  plaintiff  on  record,  after  assignment  of  his  interest,  may  be  a  witness,  on  paying 
sufficient  to  cover  all  the  costs  that  have  accrued  or  may  accrue,  without  an  ex- 
press stipulation,  not  to  claim  any  return. 

An  assignment  of  personal  property,  by  which  the  right  of  property  passes,  draws 
after  it  a  constructive  possession,  on  which  the  assignee  may  maintain  trespass. 

Error  to  the  District  Court  of  the  city  and  county  of  Phila- 
delphia. John  Turner,  Jr.,  Samuel  Humphreys,  and  Bernard 
Fitzsimmons,  brought  this  action  of  trespass  vi  et  armis,  against 
Caleb  North,  Thomas  Elliot,  Henry  Engles,  and  John  Graham, 
for  taking  and  carrying  away  300  barrels  of  tar,  200  barrels  of  ro- 
sin, and  50  barrels  of  turpentine,  the  property  of  the  plaintiffs :  to 
which  the  defendants  pleaded  not  guilty.  A  verdict  and  judgment 
were  rendered  in  the  court  below,  for  the  plaintiffs  Turner,  and 
others. 

The  property  set  out  in  the  declaration,  had  been  levied  on  by 
two  of  the  defendants,  Elliot  and  Engles,  who  were  Sheriff's  of- 
ficers, on  the  21st  of  March.  1820,  under  a  fieri  facias,  issued- 


March,  1823.]  OF  PENNSYLVANIA.  245 

(North,  Sheriff,  and  others  v.  Turner  and  others.) 

from  the  Supreme  Court,  at  the  suit  of  John  Graham  against  George 
W.  Foivle,  which  came  to  the  Sheriff's  hands,  on  the  same  day ; 
and  the  property  was  afterwards  sold  under  the  fieri  facias. 

In  order  to  prove  that  the  property  was  not  in  Foivle,  but  in  the 
plaintiff 's  the  plaintiffs  offered  John  Turner  Jr.  one  of  the  plain- 
tiffs, as  a  witness,  having  first  paid  the  costs  of  the  suit,  by  Tur- 
ner's check  for  25  dollars ;  and  having  produced  an  assignment, 
dated  18th  October,  1821,  from  the  plaintiffs  to  Richard  Goodwin 
and  Asa  Jones,  of  their  claim  against  the  defendants  jointly,  or  per- 
sonally, for  damages  sustained  by,  or  in  consequence  of  their  acts, 
or  any  of  their  acts,  and  also  of  all  such  sums  of  money  as  might 
result  from  the  trial  of  the  suit,  or  on  a  compromise  of  the  same, 
or  in  any  other  manner  ;  Richard  Goodwin  to  receive  9-13ths,  and 
Asa  Jones  the  residue.  No  evidence  was  given  to  show,  that 
Goodwin  and  Jones  knew  of,  or  had  ever  accepted  the  assignment. 
It  appeared  by  Turner's  evidence,  that  Goodwin  and  Jones  were 
the  consignors  to  Turner  fy  Co.  of  the  tar  and  rosin  ;  and  an  entry 
on  the  record  showed,  that  the  action  had  been  marked  on  the  18th 
October,  1821,  to  the  use  of  said  Goodwin  and  Jones.  The  de- 
fendants objected  to  Turner's  competency  as  a  witness,  but  the 
court  overruled  the  objection,  and  sealed  a  bill  of  exceptions. 

In  relation  to  the  question  who  owned  the  property  at  the  time 
of  the  levy,  there  was  evidence  to  show,  that  Fowle,  on  the  mor- 
ning of  the  21st  March,  1820,  gave  to  Turner  a  paper,  in  these 
words : 

Philadelphia,  March  20th,  1820. 

Messrs.  Jno.  Turner  <$•  Co. 

Bought  of  George  M.  Fowle  tip  Co. 

The  following,  now  on  boad  the  ship  Howard. 

300  Barrels  Suffolk  Tar,  at  $3,  $900 

200     do.  Rosin,     2,  400 


$1,300 
50  Barrels  Turpentine,  at  $2  25,        -  -  -  112 

$1,412 

Received  payment  this  day, 

George  M.  Fowle  §  Co. 
Wittess  Philip  Meser. 

This  paper,  Turner  sworef  had  been  prepared  the  day  of  its  date. 

The  plaintiffs  held  Fowle's  notes,  and  Foivle  being  unable  to  take 
them  up,  resold  to  them,  the  tar  and  rosin,  which  he  had  bought 
from  them,  and  added  the  turpentine.  The  goods  were  sold  on 
board  the  Howard,  which  had  been  freighted  by  Fowle  from  Mr. 
Hemphill,  and  no  possession  was  ever  had  of  the  goods  by  the 
plaintiffs  under  the  above  papers.     There  was  contradictory  evi- 


246  SUPREME  COURT  [Philadelphia, 

(North,  Sheriff,  and  others  v.  Turner  and  others.) 

dence  as  to  the  exact  time,  at  which  this  paper  was  delivered  on  the 
21st  March.  It  was,  however,  early  in  the  morning.  There  was 
doubt  also  of  the  moment  when  the  levy  was  actually  made.  The 
officers  were  in  possession  early  in  the  day.  The  court  below 
charged  the  jury  as  follows  : 

There  is  but  one  question  in  this  cause.  Was  the  levy  under  the 
execution  at  the  suit  of  John  Graham  upon  these  goods  legal  ?  The 
property  once  belonged  to  Turner  <£•  Co.,  and  was  by  that  house 
sold  to  George  M.  Fowle  fy  Co.,  who  gave  their  notes  for  the  pay- 
ment of  the  price  of  the  property.  Becoming  embarrassed,  Fowle 
<§•  Co.  proposed  to  transfer  the  property  purchased  from  Turner  fy 
Co.  to  them,  and  to  add  to  it  as  an  indemnity  for  loss  and  expenses, 
the  50  barrels  of  turpentine,  purchased  from  Snowden  and  Wagner. 
This  proposal  was  on  the  part  of  Fowle  &?  Co.,  honourable  and  praise- 
worthy. It  was  the  most  correct  course  which,  under  the  circum- 
stances of  the  case,  would  be  adopted.  The  bargain  was  concluded 
on  the  20th  of  March,  and  the  bill  of  sale  was  then  made  out :  but 
as  FoivWs  notes  were  still  in  the  possession  of  Turner  <§*  Co.,  it 
was  necessary  that  he  should  use  the  precaution,  not  to  give  the  bill 
of  sale,  until  the  notes  were  given  up,  as  they  were  in  bank,  and  the 
bank  was  closed,  this  could  not  be  done,  nor  the  bill  of  sale  delivered 
until  the  next  morning. 

The  question  is,  which  had  the  priority  in  point  of  time,  the 
completion  of  the  bill  of  sale,  or  the  delivery  of  the  execution  to 
the  Sheriff?  (The  court  then  stated  the  evidence  and  proceeded.) 
If  you  think  the  bill  of  sale  was  completed,  and  delivered,  before 
the  execution  was  delivered  at  the  Sheriff's  office,  that  settles  the 
case,  so  far  for  the  plaintiffs. 

It  has  been  said  by  the  counsel  for  the  defendants,  that  the  bill 
of  sale  was  inoperative,  because  possession  of  the  goods  was  not  de- 
livered before  the  levy  was  made  under  the  execution.  The  rule, 
that  a  bill  of  sale  must  be  accompanied  with  delivery  of  possession, 
is  liable  to  many  exceptions.  For  instance,  the  case  of  a  ship  at 
sea,  where  the  delivery  of  the  grand  bill  of  sale  is  sufficient.  So 
too,  the  case  cited  by  the  plaintiff's  counsel,  from  Massachusetts  Re- 
ports, of  logs  in  the  canal. 

The  law  will  not  require  impossibilities.  We  think,  that  in  the 
present  case,  there  was  a  sufficient  delivery  of  possession.  The 
captain  of  the  Howard  was  the  agent  of  Fciuel  $•  Co.,  and  held  the 
goods  as  their  agent,  and  upon  the  execution  of  the  bill  of  sale,  he 
became  the  agent  of  Turner  fy  Co.,  and  was  in  possession  for  them. 
And  this  is  corroborated  by  the  conversation  in  Dock  Street,  be- 
tween John  Turner,  Jr.  and  Mr.  Hemphill.  Hemphill  had  a 
lien  on  the  goods  for  his  freight,  and  to  satisfy  him  touching  the 
freight,  Turner  offered  to  let  the  goods  go  on  in  the  ship,  if  she 
went  on  the  voyage.  This  was  an  act  of  ownership.  We  think 
the  delivery  sufficient. 

It  has  been  said,  trespass  vi  et  urmis  will  not  lie,  that  it  was  not 


March,  1823.]  OF  PENNSYLVANIA.  247 

(North,  Sheriff,  and  others  v.  Turner  and  others.) 

such  a  possession  as  will  support  this  form  of  action.     We  think  the 
action  well  brought. 

This  is  not  a  case  of  exemplary  damages.  There  was  no  ap- 
pearance of  oppression,  or  misconduct,  on  the  part  of  the  Sheriff. 
On  the  other  hand,  the  position  of  the  defendants  counsel  is  alto- 
gether unfounded,  that  you  must  be  confined  to  the  amount  pro- 
duced by  the  Sheriff's  sale.  The  proper  criterion  is  the  value  of 
the  goods  ;  of  the  property  illegally  seized ;  and  you  may  add  rea- 
sonable expenses,  and  interest  from  the  day  of  seizure. 

This  charge  was  excepted  to  by  the  defendants.  The  jury  gave 
a  verdict  for  the  plaintiffs  for  1,565  dollars  75  cents. 

The  following  errors  were  assigned: 

1st.  That  Turner  was  an  incompetent  witness. 

2d.  That  the  action  for  trespass  was  not  maintainable. 

Scott  and  Phillips  for  the  plaintiffs  in  error. 

1st.  Although  it  was  decided  in  Steele  v.  The  Phcenix  Insu- 
rance Company,  that  a  plaintiff  may  make  himself  a  witness,  by 
assigning  all  interest  in  the  suit,  provided  the  costs  are  previously 
paid,  yet  the  present  case  is  distinguishable  in  this,  that  the  inte- 
rest of  the  plaintiffs  in  this  action  of  trespass,  was  not  assignable. 
Steele  v.  The  Phcenix  Insurance  Company,  was  the  case  of  an  as- 
signment of  the  plaintiff's  interest  in  a  policy  of  insurance,  a  matter 
of  contract ;  but  in  this,  it  is  a  transfer  of  a  claim  founded  on  a  tort,  in 
which  damages  are  to  be  recovered.  The  action  would  have  abated 
by  the  death  of  the  plaintiff,  but  for  the  provisions  of  the  statue, 
4  Ed.III.cn.  A  claim  either  to  a  debt,  or  to  uncertain  damages,  is  not 
considered  as  a  chose  in  action,  unless  it  arise  out  of  contract  ex- 
press or  implied.  2  Bl.  Com.  396.  In  Sommer  v.  Wilt,  4  Serg.  fy 
Rawle,  28,  Duncan,  J.  says,  that  an  action  on  the  case  for  mali- 
cious abuse  of  process,  is  not  the  subject  of  assignment,  under  the 
insolvent  debtor's  act ;  it  is  neither  estate,  credit,  nor  effects :  it  is  a 
personal  action,  which  would  die  with  the  person.  Suppose  an 
action  of  slander,  or  assault  and  battery  :  would  the  court  permit 
the  plaintiff  in  such  suits,  to  assign  the  cause  of  action,  and  then 
become  a  witness?  The  rule,  as  already  established,  has  a  tendency 
to  encourage  fraud  :  but  it  would  be  much  more  dangerous,  to  ex- 
tend it  to  actions  of  tort.  Besides,  it  was  not  shown,  that  the  as- 
signment had  ever  been  acceped  by  Goodwin  and  Jones,  or  that 
it  was  known  to  them  :  the  plaintiffs  kept  it  in  their  own  possession. 
It  cannot  be  presumed  that  they  would  accept  it,  because  Tur- 
ner fy  Co.,  by  giving  up  Fowle's  notes  became  themselves  reponsi- 
ble  for  the  value.  Although  Turner  deposited  the  costs,  yet  there 
is  nothing  to  prevent  his  recovering  them  back ;  he  might  recover 
them  of  Goodwin  and  Jones,  as  money  paid  to  their  use.  There 
ought  to  have  been  a  stipulation,  that  they  should  in  no  event  be 
restored  to  the  plaintiff'.  Patton's  Administrators  v.  Ash,  3  Serg. 
&  Rawle,  303. 

2d.  As  to  the  form  of  action.      The  property,  when  seized  by 


248  SUPREME  COURT  [Philadelphia, 

(North,  Sheriff,  and  others  v.  Turner  and  others.) 

the  Sheriff,  was  on  board  a  vessel,  where  it  had  been  placed  by 
Fowle  for  exportation.  We  say,  that  possession  had  never  been 
taken  by  the  plaintiffs,  and  therefore,  they  could  not  support  tres- 
pass.   Esp.  Ev.  214.  8  Johns.  435,  11  Johns.  377,  12  Johns.  348. 

Kittera,  contra. 

1st.  It  is  objected  that  this  action  was  not  assignable,  not  being 
a  chose  in  action.  Jacobs,  in  his  Did.  Tit.  Chose,  says  a  right  to 
sue  for  goods  which  have  been  taken,  is  a  chose  in  action.  And 
though  the  form  of  the  action  is  trespass,  it  is  to  recover  the  value 
©f  the  goods,  as  much  as  trover.  As  to  the  non-acceptance  of  the 
assignment  it  was  in  the  hands  of  the  counsel  for  Goodvrin  and 
Jones,  for  some  weeks  before  the  trial.  In  Smith  v.  The  Bank  of 
Washington,  5  Serg.  fy  Rawle,  318,  an  assignment  of  bank  stock 
was  made  by  a  witness,  at  the  trial,  to  his  daughter,  then  at  a  dis- 
tance, and  delivered  to  the  cashier  for  her  use,  and  the  witness  was 
held  competent.  The  objection  in  relation  to  the  costs,  is  equally 
without  weight :  for  where  the  costs  are  paid,  in  order  to  let  in 
the  plaintiff  as  a  witness,  it  is  always  understood,  that  they  are  in 
no  event  to  be  recovered  back. 

2d.  Trespass  was  the  proper  form  of  action.  Constructive  pos- 
session is  sufficient  to  support  trespass,  and  the  right  of  property 
draws  after  it  the  constructive  possession.  6  Bac.  Ab.  563.  Thus, 
if  the  owner  of  goods  at  a  distance,  give  them  to  J.  S.,  and  before 
J.  S.  have  obtained  the  actual  possession,  a  stranger  take  them,  J.  S. 
may  maintain  an  action  of  trespass  against  the  stranger  :  for  by  the 
gift  he  acquired  a  general  property  in  the  goods.  Bro.  Ab.  Tresp. 
PI.  303,  Latch,  214.  In  Dawes  v.  Polk,  4  Binn.  258,  it  is  said, 
that  where  the  delivery  of  possession  is  impossible,  all  that  is  re- 
quired is  to  deliver  such  possession  as  the  nature  of  the  thing  ad- 
mits of.  He  also  cited  12  Mass.  Rep.  300,  Selw.  JV.  P.  1105.  Mien 
v.  Smith,  10  Mass.  Rep.  309. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  Steele  v.  The  Phcenix  Insurance  Company  decides  the 
point,  that  no  objection  lies  to  the  competency  of  a  witness,  be- 
cause he  is  a  plaintiff  on  the  record,  and  was  the  real  party  in 
interest  when  the  suit  was  brought,  if  he  has  in  the  mean  time 
divested  himself  of  all  the  interest  which  he  had  in  the  subject  of 
the  action.  But  as  this  is  an  action  of  trespass  de  bonis  asportatis, 
it  is  urged  that  the  property  in  the  damages  expected  to  be  reco- 
vered, being  for  a  mere  tort,  is  so  peculiarly  attached  to  the  person 
as  to  be  inseparable  from  it ;  and  consequently,  that  the  interest  of 
the  plaintiffs  in  the  subject  of  the  suit,  could  not  be  assigned,  because, 
before  an  actual  recovery  of  damages,  there  was  nothing  for  an  as- 
signment to  operate  upon.  There  are  undoubtedly,  some  injuries 
which  so  peculiarly  adhere  to  the  person  of  him  who  has  suffered 
them,  as  to  preclude  an  assignment  of  his  claim  to  compensation 
for  thern,  so  as  to  make  him  a  witness:  such,  for  instance,  as  slan- 


March,  1823.]  OF  PENNSYLVANIA.  249 

(North,  Sheriff,  and  others  v.  Turner  and  others.) 

tier,  assault  and  battery,  criminal  conversation  with  the  party's  wife, 
and  many  others  that  might  be  mentioned  ;  the  right  to  compensa- 
tion for  any  of  these,  would  not  pass  by  a  statute  of  bankruptcy,  or 
an  assignment  under  the  insolvent  acts,  nor  could  it  be  transmitted 
to.  executors  or  administrators.  But  this  does  not  hold  with  respect 
to  a  trespass  committed  against  a  party's  goods,  the  remedy  for 
which  survives  to  the  personal  representative,  by  the  statute  4  E.  3, 
c.  7  ;  which  clearly  shows  that  such  a  cause  of  action  is  separable 
from  the  person  of  the  owner ;  and  it  cannot  be  doubted,  that  it 
would  pass  by  a  commission  of  bankruptcy  ;  for,  before  actual  re- 
covery of  damages  for  the  trespass,  the  property,  in  the  goods  them- 
selves, remains  in  the  original  owner,  or  those  who  represent  him. 
The  subject  matter  of  the  demand,  therefore,  being  clearly  assign- 
able, the  objection  on  that  ground  cannot  be  sustained. 

It  is  further  objected,  that  there  was  nothing  to  show,  that  the 
assignment  was  accepted  by  Goodwin  and  Jones,  or  that  they  ever 
knew  of  it.  On  this  part  of  the  case,  the  bill  of  exceptions  is  not 
explicit,  but  enough  appears  to  show  that  the  plaintiffs  below,  had 
received  these  very  goods  from  Goodwin  and  Jones,  on  consign- 
ment ;  and  the  assignment  of  the  action  to  them  was,  therefore,  for 
a  valuable  consideration  ;  and  as  it  was  beneficial  to  Goodwin  and 
Jones ;  their  assent  must  be  presumed.  This  principle  was  fully 
decided  in  Smith  v.  The  Bank  of  Washington,  5  Serg.  fy  Rawle, 
318. 

Another  ground  of  objection  is,  that  although  a  sufficient  sum  to 
cover  all  the  costs  that  had  accrued,  or  might  accrue,  was  paid  in 
the  cause,  yet  as  the  plaintiff  did  not  expressly  stipulate,  not  to 
claim  a  return  of  any  part  of  the  costs  so  paid,  in  case  of  a  verdict 
against  the  defendant,  there  was  still  an  existing  interest  in  the 
witness,  who  being  liable  for  costs,  would  divest  himself  of  it  only 
by  an  absolute  and  unconditional  payment  of  all  the  costs  in  the 
suit.  This  objection  is  rested  on  an  expression  of  the  Chief  Justice 
in  Jlsh  v.  Pattorfs,  Admrs.  3  Serg.  fy  Rawle,  300,  but  it  is  not  there 
said,  that  the  stipulation  must  be  express.  The  very  act  of  paying 
costs  to  remove  a  disqualification  on  account  of  interest,  includes  in 
it  a  stipulation,  that  the  costs  are  paid  on  conditions  which  are  to 
have  the  effect  of  completely  removing  the  interest  objected  to  :  and 
a  payment  on  terms  which,  in  case  of  a  verdict  against  the  adverse 
party,  would  enable  the  party  on  the  record,  to  get  something  back, 
could  not  have  that  effect :  his  interest  in  promoting  a  recovery 
would  remain.  Then,  for  what  purpose  insist  on  having  an  express 
stipulation  on  the  record  ?  In  taxing  the  bill,  the  court  would  in- 
quire into  the  conditions  on  which  the  costs  were  paid,  and  be  go- 
verned by  a  consideration  of  the  fact,  that  they  had  been  paid 
actually  to  divest  the  party  of  interest,  so  as  to  make  him  a  compe- 
tent witness.  But  the  very  point  was  determined  in  Conrad  v. 
Keyser,  5  Serg.  fy  Rawle,  370,  where  it  is  said,  that  the  act  of  pay- 
ment is  itself,  a  stipulation. 

VOL.  ix.  21 


250  SUPREME  COURT  [Philadelphia, 

(North,  Sheriff,  and  others  0.  Turner  and  others.) 

The  error  assigned,  with  respect  to  the  charge,  cannot  be  sus- 
tained. The  re-assignment  of  the  property  by  Fowle  fy  Co.,  to  the 
plaintiffs  on  the  record,  vested  the  title  in  them,  and  gave  them  a 
right  to  immediate  possession.  This  right  of  property  drew  after 
it  a  constructive  possession,  which  is  all  that  is  necessary  to  sustain 
an  action  of  trespass.     The  judgment,  therefore,  is  affirmed. 

Judgment  affirmed. 


[Philadelphia,  March  24,  1823.] 

Commonwealth  ex  relatione  PATTON  and  another  against  The 
Commissioners  of  the  County  of  Philadelphia. 

mandamus. 

The  compensation  to  the  Auditors  of  the  county  of  Philadelphia,  for  settling  the  ac- 
counts of  the  guardians  of  the  poor  of  the  city  and  districts,  is  to  he  paid  out  of 
the  county  treasury. 

This  case  was  argued  by  Mahany  for  the  relators,  and  Peters  for 
the  defendants. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  A  rule  having  been  laid  on  the  commission- 
ers of  the  county  of  Philadelphia,  "to  show  cause  why  a  manda- 
mus should  not  be  issued,  commanding  them  to  pay  to  Samuel 
Patton  88  dollars,  and  to  John  Roberts  84  dollars  ;  the  sums  re- 
spectively due  to  them,  as  Auditors  of  the  county  of  Philadelphia 
for  auditing  and  settling  the  accounts  of  the  Guardians  of  the  Poor, 
and  Managers  of  the  Almshouse  of  the  city  of  Philadelphia,  the 
district  of  Southwark  and  township  of  the  Northern  Liberties, 
agreeably  to  the  provisions  of  the  act  of  assembly,  passed  the  30th 
March,  1791,  and  in  conformity  with  the  directions  of  the  act  of 
assembly,  passed  the  2d  Jlpril,  1821,"  the  commissioners  have 
shown  for  cause  against  the  mandamus,  "  that  they  are  not  liable 
by  law  to  pay  the  money  claimed  by  the  Auditors  of  the  county  of 
Philadelphia,  the  services  for  which  the  money  claimed  as  a  com- 
pensation, having  been  performed  for  the  Guardians  of  the  Poor  of 
the  city  of  Philadelphia,  the  district  of  Southwark,  ana  the  township 
of  the  Northern  Liberties. 

The  question  is,  whether  the  commissioners  of  the  county  of 
Philadelphia  are  bound  to  pay  the  auditors,  the  compensation  de- 
manded by  them,  for  auditing  and  settling  the  accounts  of  the  guar- 
dians of  the  poor,  &c.  and  to  form  a  judgment  on  this  question,  it 
will  be  necessary  to  consider  several  acts  of  assembly,  by  which  an 
allowance  is  made  to  the  auditors  for  their  services.  By  the  act  30th 
March,  179],  the  auditors  were  directed  to  audit  the  accounts  of 
the    county   commissioners,   and   were    allowed    ten    shillings   per 


March,  1823. j  OF  PENNSYLVANIA.  251 

(Commonwealth  ex  relatione  Patton  and  another  v.  The  Commissioners  of  the  county 

of  Philadelphia.) 

day  respectively,  while  employed  in  the  said  business,  tog-ether  with 
such  other  incidental  and  unavoidable  expenses  as  the  county  court 
should  think  reasonable,  to  be  paid  out  of  the  county  stock.     (3 
Sm.  L.  17.  Sect.  8.)     By  the  act  16th  March,  1809,  the  auditors, 
who  had  before  been  appointed  by  the  court,  were  to  be  elected  by 
the  people,  and  each  of  them  was  to  be  allowed  out  of  the  county 
stock,  the  sum  of  one  dollar  and  thirty  three  cents,  and  no  more,  for 
every  day's  attendance  on  the  duties  of  his  office  (5  Sm.  L.  19. 
sect.  3.)     By  the  act  of  the  20th  March,  1810,  sect.  2.  (5  Sm.  L. 
161.)  it  was  made  the  duty  of  the  auditors,  to  settle  and  adjust  the 
accounts  of  all  moneys  received  by  the  sheriff  or  coroners,  agreeably 
to    an    act  directing  the  mode   of  selecting*  and  returning1  jurors. 
Nothing  is  said  about  compensation  for  this  new  duty  imposed  on  the 
auditors ;  not  because  they  were  to  receive  no  compensation  for  this 
additional  service,  but  because  the  compensation  was  provided  for 
by  the  act  of  16th  March,  1S09,  which  gave  them  one  dollar  and 
thirty -three  cents,  for  every  day's  attendance  on  the  duties  of 
their  office.     By  the  act  of  31st  March,  1812,  the  duty  of  the  com- 
missioners was  increased,  by  the  settlement  of  the  accounts  of  the 
Board  of  Health.  (5  Sm.  L.  372.  sect.  5.)     This  act  too,   was 
silent  as  to  compensation,  for  the  reason  before  assigned.     By  the 
act   21st  February,  1814,  the  auditors  were  allowed  sixty-seven 
cents  per  day,   for  every  day  they  should  attend  their  respective 
duties,   in  addition  to  the  pay  allowed  them  before,  {Purd.   Dig. 
111.)     By  the  act  of  18th  January,  1821,  sect.  6.  (7  State  L.  345,) 
the  pay  of  the  auditors  of  the  several  counties,  was  fixed,  at  the  rate 
of  one  dollar  and  fifty  cents  per  day,  and  no  more,  to  be  paid  out  of 
the  county  treasury,  for  every  day  they  shall  necessarily  attend 
their  respective  duties,  except  in  the  city  and  county  of  Philadel- 
phia, where  the  pay  was  to  be  two  dollars  per  day.     Then  came 
the  act  of  2d  April,  1821,  by  which  it  was  made  the  duty  of  the  au- 
ditors of  the  county  of  Philadelphia,  "to  audit  and  adjust  and  set- 
tle the  accounts  of  the  guardians  of  the  poor  of  the  city  of  Philadel- 
phia, the  district  of  Southwark,  and  township  of  the  Northern 
Liberties,  and  of  the  inspectors  of  the  prison.     No  mention  is  made 
of  compensation,  so  that  those  heavy  additional  services  must  go  with- 
out compensation,  unless  the  case  is  included  in  the  provisions  of  the 
former  acts,  which  give  a  per  diem  allowance  for  every  day  in  which 
the  auditors  are  necessarily  attending  then  respective  duties.     I 
have  not  the  least  doubt,  that  the  case  is  within  the  provision  of  the 
act  of  18th  January,  1821,  the  words  of  which  extend  to  all  days 
in  which  the  auditors  shall  be  attending  their  duties,  whether  those 
duties  were  imposed  by  former,  or  should  bo  imposed  by  subsequent 
laws.     The  legislature  might  require  of  the  auditors,  any  services  it 
might  think  proper,  and  we  see  that  it  had  been  usual  to  do  so,  from 
time  to  time.     The  auditors  could  not  complain  of  this,  because, 
having-  a  per  diem  allowance,  the  compensation  was  always  adequate 


252  SUPREME  COURT  [Philadelphia, 

(Commonwealth  ex  relatione  Patton  and  another  v.  The  Commissioners  of  the  county 

of  Philadelphia.) 

to  the  trouble.  But,  if  the  additional  services  required  by  the  act  of 
2d  Jlpril,  1821,  were  to  be  without  compensation,  there  would, 
have  been  great  cause  to  complain.  I  cannot  see  the  least  reason 
for  supposing  that  the  legislature  intended  to  leave  these  services  un- 
compensated, and  the  only  objection  that  the  counsel  for  the  commis- 
sioners has  been  able  to  suggest,  is,  that  it  is  unreasonable,  the 
county  of  Philadelphia  should  pay  for  services  performed  not  for 
the  whole  county,  but  for  part,  viz.  the  city  of  Philadelphia,  the 
district  of  Sout hioark,  and  township  of  the  Northern  Liberties. 
There  is  very  little  weight  in  this  objection — for,  although  the  ser- 
vices are  performed  but  for  part  of  the  county,  yet  it  is  much  the 
largest  part.  The  same  thing  had  been  clone  before,  when  the 
duty  of  settling  the  accounts  of  the  Board  of  Health  was  imposed 
on  the  auditors.  The  most  that  can  be  said,  is,  that  it  would  have 
been  more  agreeable  to  strict  justice,  if  the  expenses  of  settling  the 
accounts  of  the  guardians  of  the  poor,  <?Cc.  had  not  been  thrown  on 
the  county  at  large.  And,  perhaps,  upon  a  representation  to  the 
legislature,  the  law  may  be  altered.  But  our  duty  is  not  to  specu- 
late upon  the  expediency  of  the  4aw,  but  to  give  it  a  true  construc- 
tion. For  the  reasons  which  I  have  mentioned,  I  am  well  satisfied, 
that  the  auditors  are  entitled  to  be  paid  out  of  the  county  treasury, 
and  am  therefore  of  opinion  that  the  rule  for  the  mandamus  should, 
be  made  absolute. 

Rule  absolute. 


[Philadelphia,  March  24th,  1823.] 

EVANS,  Administratrix  of  EVANS  against  TATEM. 

IN  ERROR, 

A  person  taking  out  letters  of  administration  in  Pennsylvania,  may  be  sued  in  Ten- 
nessee for  a  debt  due  by  the  intestate. 

An  action  at  law  is  maintainable  in  Pennsylvania,  on  a  decree  of  a  Court  of  Equity 
in  Tennessee  for  the  payment  of  money. 

In  such  action  the  picas  oi  nil  debet,  and  nul  tiel  record,  are  both  bad  on  general  de- 
murrer. 

If  the  defendant  mean  to  deny  the  existence  of  such  decree,  he  may  frame  a  plea 
to  meet  the  averment  of  the  decree  in  the  declaration,  and  such  a  plea  must 
conclude  to  the  county. 

Error  to  the  District  Court  for  the  city  and  county  of  Phila- 
delphia. ' 

Howell  Tat  em,  the  plaintiff  below,  brought  this  action  of  debt 
against  Jinn  Evans,  administratrix  of  John  B.  Evans,  deceased, 
to  recover  the  sum  of  G,239  dollars,  and  10  cents,  including  the 
amount,  with  costs,  decreed  in  favour  of  the  plaintiff  Tatem,  against 


March,  1823.]  OF  PENNSYLVANIA.  253 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

the  defendant  Ann  Evans,  as  surviving  administratrix  of  J.  B. 
Evans,  in  the  Court  of  Errors  and  Appeals,  and  Court  of  Equity, 
for  the  State  of  Tennessee.  The  decree  was  made  in  that  court 
in  a  proceeding  by  Tatem,  by  bill  in  equity,  to  which  the  defen- 
dant, Ann  Evans,  appeared  and  pleaded,  and  it  was  thereby  or- 
dered, adjudged,  and  decreed,  that  she  the  said  Ann,  administra- 
trix of  J.  B.  Evans,  deceased,  should  pay  to  the  said  Tatem,  the 
sum  of  5,949  dollars  60  cents,  out  of  the  assets  belonging  to  the 
estate  of  the  said  /.  B.  Evans,  deceased,  which  had  come  to  her 
hands  to  be  administered,  and  all  the  costs  of  the  cause  out  of 
said  assets  in  her  hands  to  be  administered,  and  if  none,  then  out 
of  her  proper  goods  and  chattels.  The  defendant  pleaded  nil  de- 
bet, and  nul  tiel  reco?*d :  to  both  which  pleas,  theplaintiffdemurred, 
and  the  court  below  gave  judgment  for  the  plaintiff.  The  defen- 
dant also  pleaded  no  assets,  plene  administravit,  and  payment  with 
leave,  &c. :  to  which  the  plaintiff  replied,  assets,  not  fully  adminis- 
tered, and  non  solvit,  and  issues  were  joined  thereon,  and  a  verdict 
was  given  on  each  issue  for  the  plaintiff. 

On  the  trial  of  these  issues  in  the  court  below,  the  defendant,  un- 
der a  previous  notice  of  special  matter,  and  notice  to  produce  the 
copy  of  the  order,  judgment,  and  decree,  upon  which  the  suit  was 
founded,  offered  to  show  by  evidence,  that  neither  she,  nor  the  in- 
testate, /.  B.  Evans,  were  at  any  time  indebted,  or  bound  in  law 
or  equity,  to  pay  to  the  plaintiff  any  sum  or  sums  of  money  ;  and 
also,  that  the  defendant,  being  administratrix  under  the  law  of 
Pennsylvania,  and  not  under  the  laws  of  Tennessee,  and  the  said 
order,  judgment,  and  decree,  being  had  or  made  upon  matters  al- 
leged to  have  arisen  and  existed  in  the  life  time  of  the  intestate,  she 
was  not,  as  such,  amenable  to  the  authority,  or  power  of  a  court 
in  Tennessee  ;  and  that,  therefore,  the  said  order,  judgment,  and  de- 
cree, were  not  had  or  made  by  any  court  having  jurisdiction  in  the 
matter. 

And  the  defendant  further  offered  to  show,  that  from  the  said  de- 
cree itself,  and  the  matters  therein  stated,  nothing  was  due  in  law 
or  equity,  or  ought  to  be  paid  by  the  defendant  to  the  plaintiff,  and 
that  the  same  was  unjust  and  unfounded. 

And  also,  that  from  the  matters  stated  in  the  decree,  as  inducing 
the  same,  it  does  not  appear  on  the  face  of  the  proceeding  and  de- 
cree, that  so  much  is  due  to  the  plaintiff,  as  by  the  same  is  decreed. 

But  the  court  below  rejected  the  whole  of  the  evidence  so  offer- 
ed, and  were  of  opinion,  that  the  said  order,  judgment,  and  decree, 
were  conclusive  evidence  of  the  debt  in  the  plaintiff's  declaration 
claimed  and  could  not  be  controverted,  and  so  gave  it  in  charge  to 
the  jury.     To  which  charge  the  defendant  excepted. 

Conch/,  for  the  plaintiff  in  error,  contended,  that  a  decree  of  a 
Court  of  Chancery  was  not.  a  record,  nor  conclusive  of  the  rights 
of  the  parties,  but  might  be  inquired  into  in  another  suit,  by  evidence 
extrinsic,  or  by  showing  from  matters  intrinsic,  that  nothing  was 


254  SUPREME  COURT  [Philadelphia, 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

due  in  law  or  equity  to  the  plaintiff,  or  that  so  much  was  not  due  as 
was  decreed.  Coke,  in  3  Inst.  71  defines  a  record  to  be,  regularly, 
a  monument,  or  act  judicial,  before  a  judge  or  judges  in  a  court  of 
record,  entered  in  parchment  in  the  right  roll ;  and  says,  speaking 
of  chancery,  that  as  to  the  proceeding  by  English  bill,  in  a  course 
of  equity,  it  is  no  court  of  record,  for  thereupon  no  writ  of  error 
lieth  as  in  other  cases.  And  again  in  page  123,  the  court  of  equity, 
in  the  proceeding  in  a  course  of  equity,  is  no  court  of  record,  and, 
therefore,  it  cannot  hold  plea  of  any  thing  whereof  judgment  is  given, 
which  is  a  judicial  matter  of  record.  And  in  4  Inst.  89,  this  court 
of  equity  proceeding  by  English  bill,  is  said  to  be  no  court 
of  record,  and  therefore,  it  can  bind  but  the  person  only,  and 
neither  the  estate  of  the  defendant's  lands,  nor  property  of 
his  goods  or  chattels.  The  same  principles  are  laid  down  in  4 
Vin.  Ab.  382,  k.  In  Doughty  v.  Fawn,  Yelv.  226.  Brownl.  117, 
it  was  held,  that  it  was  issuable  and  triable  by  jury,  whether  there 
was  an  order  of  chancery  pleaded  by  the  defendant,  or  not ;  for 
their  orders  there  are  only  in  paper,  and  are  not  of  record,  to  be 
tried  by  the  record,  but  only  by  jury.  Gilbert  in  his  Treatise  on 
Evidence,  48,  says,  the  proceedings  of  the  court  of  chancery  on  the 
English  side,  are  not  of  record ;  and  the  reason  is,  they  are  not  pre- 
cedents of  justice  ;  for  the  proceedings  in  chancery  are  founded  only 
on  the  circumstances  of  each  private  case,  and  they  cannot  be  rules 
to  any  other ;  and  the  judgment  there  is  secundum  eequum  et  bo- 
num,  and  not  secundum  leges  et  consuetudines :  and  the  reason 
why  any  record  is  of  validity  and  authority  is,  because  it  is  decla- 
rative of  the  sence  of  the  nation,  and  is  a  memorial  of  what  is  the 
law  of  the  nation  :  now  chancery  proceedings  are  no  memorials  of 
the  laws  of  England,  because  the  Chancellor  is  not  bound  to  pro- 
ceed according  to  law.  To  the  same  effect  are  Bull.  N.  P.  235,  and 
1  Harr.  Ch.  20.  Even  the  court  of  chancery  itself,  does  not  regard 
a  prior  decree  as  conclusive.  Where  a  new  original  bill  is  ne- 
cessary to  carry  a  decree  into  execution,  the  court  will  examine  the 
grounds  of  the  former  decree,  before  they  will  make  a  new  one : 
though  in  their  examination,  they  will  confine  themselves  to  the 
proofs  made  in  the  first  decree.  1  Harr.  Ch.  Pr.  148,  cites  Law- 
rence  v.  Birnie,  2  Ch.  Rep.  128.  In  West  v.  Slap,  1  Vez.  145, 
though  the  general  rule  is  stated  to  be,  that  on  a  bill  to  carry  a 
former  decree  into  execution,  the  court  can  only  do  that,  and  not 
vary ;  yet  there  are  several  instances  wherein  the  court  has  con- 
sidered the  directions,  and  whether  there  was  any  mistake  ;  and  it 
was  done  in  that  case.  To  give  this  decree  in  a  court  of  equity, 
therefore  the  conclusive  effect  contended  for  would  be  to  give  it 
a  more  blinding  efficacy  than  a  court  of  chancery,  in  the  same  state, 
would  allow  it.  They  would  examine  into  any  mistake  appearing 
on  its  proceedings  :  but  the  court  below,  in  this  case,  would  not  al- 
low us  to  show  error  on  the  face  of  the  proceedings. 

2d.  No  action  at  law  lies  on  a  decree  in  chancery.     That  court 


March,  1823.]  OF  PENNSYLVANIA.  255 

(Evans,  Administratrix  of  Evans  v.  Tafem.) 

proceeds  on  the  special  circumstances  of  each  particular  case, 
founded  on  principles  of  equity,  which  a  court  of  law  does  not  re- 
cognise, and  it  makes  specific  decrees,  which  it  is  out  of  the  power 
of  a  court  of  law  to  enforce.  A  court  of  equity  only  can  enforce 
the  decree  of  another  court  of  equity,  and  apply  the  proper  re- 
dress. It  would  be  a  great  hardship  if  the  party  could  come 
into  a  court  of  law,  and  give  the  decree,  by  the  forms  of  proceed- 
ing there,  a  conclusive  effect,  when  it  would  be  liable  to  be  open- 
ed by  a  bill  of  review,  in  the  same  court  where  it  was  given.  For 
in  the  same  court  the  decree  is  never  concluded :  it  is  always  in 
fieri ,  and  has  no  likeness  to  a  judgment  at  law.  Any  error  in 
figures  may  be  even  corrected  by  an  order:  and  a  bill  of  review 
lies  on  new  matter.  Cowp.  Eq.  88,  91.  The  plaintiff'  here  was 
not  without  a  remedy,  for  he  ought  to  have  filed  his  bill  on  the 
equity  side  of  the  Circuit  Court  of  the  United  States.  In  the  case 
of  Post  v.  Neafie,  3  Caines,  22,  it  is  true,  it  was  decided  in  New- 
York,  that  debt  lies  on  the  decree  of  a  court  of  chancery  in  ano- 
ther state,  for  the  payment  of  money  only  by  the  defendant,  without 
any  acts  to  be  done  by  the  plaintiff:  but  it  was  against  the  opinion 
of  Kent,  J.,  and  by  a  law  of  New- Jersey,  a  decree  in  chancery 
has  the  force  and  effect  of  a  judgment  at  law:  so  that  it  is  no  au- 
thority in  case  of  a  decree  of  an  ordinary  character.  It  is  stated, 
however,  in  page  37,  that  Chase,  J.,  had  decided  in  the  Circuit 
Court  of  Connecticut,  that  an  action  at  law  would  not  lie  on  a  de- 
cree in  chancery. 

3d.  Nil  debet,  or  mil  tiel  record,  were  correct  pleas  in  this  ac- 
tion, if  it  be  sustainable.  The  aid  of  the  jury  might  be  necessary 
to  examine  facts,  and  correct  errors.  If  there  were  no  such  decree, 
how  was  the  party  in  any  other  way  to  put  that  in  issue  ?  The  plea 
of  no  such  decree  is  unprecedented.  Nul  tiel  record,  was  the  pro- 
per plea  for  that  purpose :  and  should  conclude  to  the  country. 

If  there  was  such  decree,  then  the  party  ought  to  be  allowed  to 
plead  nil  debet,  by  which  he  would  entitle  himself  to  all  the  rights 
he  would  possess  in  a  proceeding  in  a  court  of  equity  in  Tennes- 
see. It  is  the  usual  and  proper  plea  to  debt  on  a  foreign  judgment, 
and  under  it  want  of  jurisdiction  might  be  shown.  It  does  not 
contravene  the  constitution  of  the  United  States,  but  admits  what- 
ever may  be  given  in  evidence  in  accordance  with  the  constitution. 

It  is  a  further  objection  to  this  action,  that  it  is  upon  a  proceed- 
ing in  Tennessee,  against  a  person  who  administered  in  Pennsyl- 
vania. It  is  different  from  the  case  of  an  administrator  plaintiff. 
In  Pennsylvania,  by  act  of  assembly,  one  who  administers  in  ano- 
ther state  may  bring  suit  here  ;  but  it  does  not  follow  that  he  may 
be  sued.  In  the  case  of  the  Selectmen  of  Boston  v.  Ward  Nicho- 
las Boylston,  2  Mass.  Rep.  384,  an  administrator  with  the  will 
annexed  of  one  domiciled  in  England,  and  dying  there,  came  into 
Massachusetts,  and   took  administration  there   cam  testamento  an- 


256  SUPREME  COURT  [Philadelphia, 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

nexo :  he  was  held  not  liable  to  account  there  for  effects  received 
by  him  in  England.  This  case  is  recognised  in  5  Mass.  Rep.  77, 
and  it  is  held,  that  an  administrator  who  has  not  administered  in 
Massachusetts  is  not  liable  to  be  sued  there,  so  as  to  render  the  real 
estate  liable.  One  who  has  obtained  administration  in  another 
stale  cannot  prosecute  or  defend  an  action  in  Massachusetts. 
Goodwin  v.  Jones,  3  Mass.  Rep.  514.  It  is  objected,  that  the  de- 
fendant pleaded  in  Tennessee :  but  there  is  nothing  in  that :  consent 
cannot  give  jurisdiction.  The  assets  were  all  collected  in  Penn- 
sylvania, and  held  in  trust  for  others.  The  defendant  never  was 
in  Tennessee.  If  one  administers  in  another  state,  and  changes  his 
domicil,  and  comes  here,  he  may  be  sued  here.  Bryan  v.  MGee 
cited  Whart.  Dig.  277.  The  decree  is  for  payment  out  of  the  as- 
sets ;  which  must  be  understood  of  assets  in  Tennessee. 
Raivle,  contra. 

1.  The  administrator  here  was  liable  in  Tennessee.  In  Swear- 
ingen  v.  Pendleton,  4  Serg.  fy  Rawle,  389,  this  point  was  decided, 
and  the  opinion  of  the  court  below  confirmed,  that  an  executor  is 
liable  in  respect  to  all  the  assets  which  come  to  his  hands,  whether 
they  arise  in  the  county  where  the  letters  testamentary  are  granted, 
or  elsewhere  in  another  state,  or  even  in  a  foreign  country,  agree- 
ably to  Doiole's  Case,  6  Co.  46,  b.,  where  one  administered  as  exe- 
cutor in  Ireland,  and  received  assets  there,  and  then  came  to  Eng- 
land :  he  was  held  liable :  for  if  the  executors  have  any  goods  of 
the  testator's  in  any  part  of  the  world,  they  shall  be  charged  in  re- 
spect to  them.  No  distinction  can  be  drawn  between  an  executor 
and  an  administrator  in  this  respect.  But  it  does  not  appear  by  the 
proceedings  in  Tennessee,  where  the  defendant  administered.  The 
bill  and  answer  merely  state,  that  administration  had  been  granted 
to  Ann  Evans,  and  Henry  Hawkins,  citizens  of  Pennsylvania  ;  the 
plea  put  in  by  Jinn  Evans,  states  her  to  be  surviving  administrator 
of  J.  B.  Evans,  and  does  not  mention  where  administration  was 
granted.  She  appeared  voluntarily  to  the  plaintiff's  bill,  and  there- 
by admitted  the  jurisdiction,  and  she  is  now  estopped  to  deny  it. 
All  the  cases  referred  to  on  the  opposite  side  occurred  in  Massa- 
chusetts, where  there  is  an  act  of  the  legislature,  regulating  this 
matter,  and  under  this  act  the  cases  were  determined. 

2.  The  plea  of  nil  debet  to  an  action  on  the  judgment  or  decree 
of  the  court  of  another  state,  is  not  admissible.  This  plea  opens 
every  thing,  even  the  original  cause  of  action ;  and  would  put  the 
plaintiff  upon  proving  that.  Chitt.  Plead.  476,  7.  The  constitu- 
tion of  the  United  States  declares,  that  full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  state :  and  congress  may,  by  general  laws,  pre- 
scribe the  manner  in  which  such  acts,  records,  and  proceedings, 
shall  be  proved  and  the  effect  thereof,  Art.  4.  Sect.  1.  Congress 
have,  accordingly,  by  the  act  of  May  26th,  1790,  Sect.  1.,  enacted, 
that  they  shall  have  such  faith  and  credit  given  to  them  in  every 


March,  1823.]  OF  PENNSYLVANIA.  257 

(Evans,  Administratrix  of  Evans  v.  Tatcm.) 

court  within  the  United  States,  as  they  have  by  law  or  usage  in  the 
courts  of  the  state  from  whence  the  said  records  are  or  shall  be 
taken.  They  have  thereby  declared  the  effect  of  such  proceedings : 
and  the  result  is  that  the  judgment  of  a  state  court  shall  have  the 
same  credit,  validity,  and  effect  in  any  state,  which  it  had  in  the 
state  where  it  was  pronounced :  and  that  whatever  plea  would  be 
good  in  a  suit  thereon  in  such  state  and  no  other  can  be  pleaded. 
Serg.  Const  Laic,  381,  and  cases  cited.  In  Mills  v.  Duryee, 
7  Cranch.  481,  in  a  suit  in  the  District  of  Columbia,  upon  a  judg- 
ment in  the  Supreme  Court  of  New  York,  the  plea  of  nil  debet 
was  held  bad  on  general  demurrer.  In  Hampton  v.  MConnel, 
4  Wheat.  234,  in  debt  in  the  Circuit  Court  of  South  Carolina,  on  a 
judgment  in  the  Supreme  Court  of  New  York,  nil  debet  was 
held  a  bad  plea.  To  the'  same  purpose  is  the  case  of  Armstrong 
v.  Carson's  Executors,  2  Dall.  302.  In  Burden  v.  Fitch,  15 
Johns.  144,  and  Andrews  v.  Montgomery,  19  Johns.  162,  the  Su- 
preme Court  of  New  York  have  held,  that  a  judgment  fairly  and 
regularly  obtained  in  another  state  is  conclusive  :  though  it  is  void, 
if  the  court  had  no  jurisdiction.  And  the  same  principle  was 
adopted  by  the  Supreme  Court  of  Massachusetts,  in  Bissel  v. 
Brigs,  9  Mass.  Rep.  462.  The  proceedings  here  were  judicial 
proceedings  within  the  meaning  of  the  constitution  and  acts  of 
congress,  and  therefore  equally  binding  with  a  record. 

3.  The  plea  of  nul  tiel  record  was  altogether  improper.  The 
proceedings  of  the  court  of  equity  in  Tennessee  are  not  called  a 
record  in  the  declaration,  and  the  cases  cited  on  the  opposite  side 
abundantly  prove,  that  they  were  not  of  the  nature  of  a  record.  If 
the  defendant  meant  to  deny  that  there  was  any  such  decree,  he 
certainly  might  plead  that  there  was  no  such  decree :  or  might 
plead  a  want  of  jurisdiction  in  the  court. 

4.  Does  an  action  at  law  lie  on  a  decree  of  a  court  of  equity  ? 
The  Court  of  Chancery  in  England  is  termed  by  Blackstone, 
one  "of  the  King's  superior  and  original  courts  of  justice."  3  Bl. 
Com.  46.  A  decree  in  Chancery  may  be  proved  by  an  exemplifi- 
cation under  the  seal  of  the  court.  1  Phill.  Ev.  295.  Such  de- 
cree is  equal  to  a  judgment  at  law,  so  far  as  concerns  the  personal 
estate  of  the  party:  and  his  goods  maybe  sequestered,  although  the 
party  is  in  custody  upon  an  attachment  for  a  contempt.  2  Madd.  Ch. 
355.  If  the  decree  is  prior  to  a  judgment  at  law,  it  shall  have  prefer- 
ence in  the  administration  of  assets  :  and  the  original  demand  transit 
in  rem  judicatam.  For.  218.  Cas.  temp.  Talb.  217,  223.  The  same 
principle  is  decided  in  Thompson  v.  Brown,  4  Johns.  Ch.  Cas.  638. 
In  Hopkins  v.  Lee,  6  Wheat.  109,  a  decree  in  chancery  is  said  to  be 
as  conclusive  between  the  parties  as  a  judgment  at  law.  The 
inquiry  into  the  merits  of  an  original  decree,  is  but  matter  of  prac- 
tice :  and  in  New  York  it  can  only  be  done  by  bill  of  review,  Gel- 
ston  v.  Codwise,  1  Johns.  Ch.  189.  Bennet  v.  Winter,  2  Johns. 
Ch.  205.     The  cases  cited  to  show  that  in  England,  on  a  bill 

vol.  ix.  2  K 


258  SUPREME  COURT  [Philadelphia, 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

filed  to  enforce  a  decree,  the  court  will  inquire  into  the  merits  of 
the  original  decree,  do  not  prove  this  to  be  the  general  rule ;  and 
if  it  were,  it  does  not  prove  that  the  complainant  may  not  have  his 
election  to  proceed  at  law  or  equity.  By  the  law  of  Tennessee, 
the  complainant  may  have  an  execution  on  a  decree  in  equity,  as 
on  a  judgment  at  common  law.  Such  being  the  effect  of  a  decree, 
there  is  no  reason  why  an  action  at  law  should  not  be  maintained 
on  it,  where  it  is  simply  for  the  payment  of  money,  which  then 
becomes  a  debt,  3  Lev.  555.  Equity  is  part  of  our  law ;  and  as 
we  have  no  Court  of  Chancery,  a  party  recovering  a  debt  by  such 
a  decree  in  another  state,  would  be  remediless  in  the  courts  of Penn- 
sylvania, if  the  courts  of  common  law  refuse  to  sustain  an  action. 
Such  action  is  not  without  precedent.  In  7  Went.  Plead,  there  is 
the  form  of  a  declaration  on  a  decree  in  chancery.  And  in  Post 
v.  JVeaJie,  3  Caines,  22,  the  Supreme  Court  of  JYeio  York,  de- 
termined, that  an  action  at  law  was  maintainable  there  on  a  decree 
in  chancery  in  JVeio  Jersey. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  of  debt,  brought  by  Howell 
Tatem  the  defendant  in  error,  who  was  plaintiff  below,  against 
Jinn  Evans,  administratrix  of  John  B.  Evans,  deceased,  on  a  decree 
in  the  "  Court  of  Errors  and  Appeals,  and  Court  of  Equity  for  the 
state  of  Tennessee^  for  the  sum  of  6239  dollars  and  10  cents. 

The  defendant  pleaded  nil  debet,  and  nul  tiel  record,  to  both 
which  pleas  the  plaintiff  demurred,  and  judgment  was  given  in  his 
favour.  The  defendant  pleaded  also,  no  assets  plene  administravit, 
and  payment  with  leave,  &c.  to  which  the  plaintiff  replied,  assets, 
not  fully  administered,  and  non  solvit;  and  issues  were  thereupon 
joined  and  a  verdict  given  on  each  issue  for  the  plaintiff.  On 
the  trial  of  the  cause  in  the  court  below,  the  defendant  offered  to 
prove,  "  that  neither  she,  nor  her  intestate,  were,  at  the  time  of 
the  said  decree,  or  any  time  before,  indebted,  or  bound,  in  law  or 
equity,  to  pay  to  the  plaintiff  any  sum  or  sums  of  money.  Also, 
that  the  defendant  being  an  administratrix  under  the  law  of  Penn- 
sylvania, and  not  of  Tennessee,  and  the  said  decree  being  made  on 
matter  alleged  to  have  arisen  and  existed  in  the  life  time  of  the 
intestate,  was  not  as  such,  amenable  to  the  authority  of  a  court  in 
Tennessee,  and  therefore  the  said  decree  was  not  made  in  a  court 
having  jurisdiction."  The  defendant  also  offered  to  prove  other 
matters  which  went  to  the  merits  of  the  case,  all  of  which  evi- 
dence was  rejected  by  the  court.  The  counsel  for  the  plaintiff  in 
error,  argued  his  case  on  four  points,  which  I  shall  now  consider. 

1.  Was  the  defendant  who  administered  in  Pennsylvania,  lia- 
ble to  a  suit  in  Tennessee,  for  matters  which  arose  in  the  life 
time  of  the  intestate  ?  I  can  perceive  no  good  reason  against 
such  a  suit,  but  many  in  its  favour.  If  a  person  who  adminis- 
ters in  one  state,  and  receives  assets  there,  is  not  sueable  on  his 


March,  1823.]  OF  PENNSYLVANIA.  259 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

removal  to  another  state,  it  would  produce  the  greatest  injustice. 
The  removal  from  state  to  state,  is  the  act   of  the  administrator, 
which  the  creditors  of  the  intestate  cannot  prevent,  and  therefore 
sho  uld  not  be    prejudiced  by  it.     The  assets  are  to  be  adminis- 
tered according  to  the  law  of  the  state,  within  which  the  administra- 
tion    was    granted,    and  justice    requires   that    the    administrator 
should  be  liable  to  the  amount  of  the  assets  which  have  come  to 
his  hands  in  whatever  state  he  may  be  found.     The  counsel  for 
the  plaintiff  in  error,  admits  that   the  administrator  may  be  sued 
in  another  state,  provided   he   has  removed  there,  with  intent  to 
make  it  the  place   of  his  permanent  residence.     But  it  is  imma- 
terial what  his  intent  is.     Wherever  he  goes  he  carries  with  him 
the  obligation  to  administer  the  assets.     So  has  the  law  been  held 
from   the   time  of  Lord  Coke  to  the  present  day.     In  DowdWs 
6  Co.  46,  it  was  decided,  that  one  who  received  letters  testament 
tary  in   Ireland,  where  assets  came  to  his   hands,   was  liable    to 
a  suit  in  England.      There    is  good  sense  in  the   following  ob- 
servation of  the  court,  in  that  case.     "  If  the  executors  have  goods 
of  the  testator  in  any  part  of  the  world,  they  shall  be  charged 
in   respect   of  them  ;  for  many  merchants,   and  other  men,   who 
have  stock  and  goods  to  a  great  value  beyond  sea,  are  indebted 
here  in  England  ;  and  God  forbid  that  these  goods  should  not  be 
liable  for  their  debts ;  for  otherwise  there  would  be  a  great  defect 
in  the  law."     The  same  principle  was  declared  to  be  law  by  this 
court,  in  the  western  district  in  the  case  of  Swearingenis  Executors 
v.  Pendleton? s  Executors,   4  Serg.   #  Rawle,  389.     There   it  was 
held  that  a  suit  might  be  sustained  in  Pennsylvania,  against  an  exe- 
cutor who  had  administered  in  Virginia.     So  that  this  point  may  be 
considered  as  settled. 

2.  The  second  question  in  this  case  is,  whether  the  plea  of  nil- 
debet  was  good  ?  If  this  plea  was  good,  the  merits  of  the  decree 
of  the  court  of  Tennessee,  might  have  been  contested.  On  the 
issue  of  nil  debet,  every  thing  is  thrown  open.  In  an  action  of 
debt  on  a  foreign  judgment,  the  defendant  is  at  liberty  to  contro- 
vert the  original  cause  of  action.  But,  under  the  constitution  of 
the  United  States,  judgments  in  one  state,  are  not  considered,  in 
another,  as  foreign  judgments.  In  art.  4.  sect.  1.  of  that  constitu- 
tion, it  is  declared,  that  "  full  faith  and  credit  shall  be  given,  in  each 
state,  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  state,  and  the  congress  may,  by  general  laws,  prescribe 
the  manner  in  which  such  acts,  records  and  proceedings  shall  be 
proved,  and  the  effect  thereof^  The  congress  have  exercised  the 
power  vested  in  them  by  this  article,  by  their  act  passed  the  26th 
May,  1790,  in  which,  after  prescribing  the  mode  of  authentication, 
they  declare,  "  that  the  said  records  and  judicial  proceedings,  au- 
thenticated as  aforesaid,  shall  have  such  faith  and  credit  given  to 
them,  in  every  court  within  the  United  States,  as  they  have  by 
law,  or  usage,  in  the  courts  of  the  state  from  whence  the  said  re- 


260  SUPREME  COURT  [Philadelphia, 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

cords  are,  or  shall  be,  taken."  The  question  then  is,  what  faith 
and  credit  would  the  courts  of  Tennessee  have  given  to  this  decree 
in  chancery.  The  answer  cannot  be  doubted.  The  decree  would 
have  been  held  incontrovertible.  The  construction  of  this  ar- 
ticle of  the  constitution  has  been  settled  by  repeated  decisions 
in  various  courts  of  various  states,  as  well  as  in  the  courts  of 
the  United  Slates.  A  judgment  in  one  state,  is  conclusive  in 
all  other  states,  provided  it  was  rendered  by  a  court  having  compe- 
tent jurisdiction.  The  first  decision  on  this  subject,  was  in  the 
case  of  Armstrong  v.  Carson's  Executors,  in  the  year  1794,  in  the 
Circuit  Court  of  the  United  States,  held  at  Philadelphia.  It 
was  an  action  of  debt  on  a  judgment  in  the  Supreme  Court  of 
New  Jersey.  The  defendant  pleaded  nil  debet,  which  was  held  to 
be  a  bad  plea.  In  Bissel  v.  Brigs,  9  Mass.  462,  a  suit  was  brought 
on  a  judgment  in  New  Hampshire,  against  an  inhabitant  of  Boston, 
who  was  arrested  in  New  Hampshire,  and  appeared  and  plead- 
ed. It  was  held  by  the  Supreme  Court  of  Massachusetts, 
that  by  virtue  of  the  constitution  and  laws  of  the  United  States, 
the  defendant  was  concluded  by  this  judgment.  It  appeared 
that  the  court  of  New  Hampshire  had  jurisdiction,  and  that  was 
the  only  matter  that  could  be  inquired  into.  In  Mills  v.  Duryee, 
7  Cranch.  481,  it  was  decided  by  the  Supreme  Court  of  the 
United  States,  that  nil  debet  was  a  bad  plea,  in  an  action  brought 
in  the  Circuit  Court  of  the  District  of  Columbia,  on  a  judg- 
ment of  the  Supreme  Court  of  New  York.  And  the  same  point 
was  decided  in  the  same  manner,  by  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Hampton  v.  M'  Connel,  4  Wheat.  234, 
which  was  an  action  of  the  Circuit  Court  of  South  Carolina, 
on  a  judgment  in  the  Supreme  Court  of  Neio  York.  The 
Supreme  Court  of  New  York,  seems  once  to  have  been  of 
opinion,  that  judgments  rendered  in  one  state,  were  to  be  consid- 
ered as1  foreign  Judgments  and  therefore  not  conclusive,  in  an- 
other. I  allude  to  the  case  of  Hitchcock  v.  Aiken,  1  Caineh,  460. 
But  that  highly  respectable  court,  on  mature  reflection  has  come 
to  the  opinion,  that  a  judgment  fairly  and  regularly  obtained  in 
one  state,  is  conclusive  in  another.  This  will  appear  from  the 
cases  of  Burden  v.  Fitch,  15  Johns.  144,  and  Andrews  v.  Montgo- 
mery, 19  Johns.  162.  I  have  no  hesitation,  therefore,  in  con- 
cluding, that  the  plea  of  nil  debet,  in  the  case  before  us,  was  bad. 

3.  We  come  now  to  the  third  point,  which  is,  whether  the  plea 
of  nut  tiel  record  was  good  ? 

If  proceedings  in  Courts  of  chancery  are  not  records,  nul  tiel  re- 
cord was  not  a  good  plea.  And  that  such  proceedings  are  not  re- 
cords seems  to  be  well  established.  In  Gilbert's  Lena  of  Evidence, 
49,  it  is  said,  that  proceedings  in  chancery  by  bill  and  answer, 
are  not  records,  because  they  are  secundum  cequum  et  bonum,  and 
not  according  to  the  laws  and  customs  of  the  realm.  In 
Sutler's  Nisi  Pi  ins,  -J  15.    we    find   the   same   assertion,   founded 


March,  1823.]  OF  PENNSYLVANIA.  261 

(Evans,  Administratrix  of  Evans  v.  Tatem.) 

on  the  same  reason.  Lord  Coke  defines  a  record  to  be  "  a  pro- 
ceeding in  a  court  of  justice  which  has  power  to  hold  a  plea  accord- 
ing to  the  course  of  the  common  law,"  Co.  Lit.  260.  In  the  case 
of  Doughty  v.  Fawn,  Yeh.  226,  it  was  said  by  the  court,  that 
"  orders  in  chancery  are  not  of  record,  to  be  tried  by  the  record,  but 
by  a  jury."  It  is  to  be  observed,  that  in  the  case  before  the  court, 
the  plaintiff's  declaration  does  not  call  the  decree  in  chancery  a 
record,  and  if  the  defendant  intended  to  deny  that  any  such  decree 
existed,  he  might  have  framed  his  plea  so  as  to  meet  the  averment 
in  the  declaration  ;  and  the  tender  of  the  issue  should  have  con- 
cluded to  the  country,  according  to  the  case  in  Yeherton.  The 
court  below  was  right  therefore  in  deciding  that  the  plea  of  mil  tiel 
record  was  bad. 

5.  The  fourth  and  most  difficult  question  is,  whether  an  action  of 
debt  lies  in  a  court  of  common  law,  to  recover  a  sum  of  money  or- 
dered to  be  paid  by  a  decree  in  chancery. 

It  is  no  wonder  that  little  upon  this  subject  is  to  be  found  in  the 
English  books,  because  in  England,  the  Court  of  Chancery  having 
ample  power  to  enforce  its  own  decree,  there  can  seldom  be  oc- 
casion to  resort  to  a  court  of  law.  The  same  observation  applies 
to  those  of  our  sister  states  which  have  courts  of  chancery.  The 
subject,  however,  has  sometimes  been  brought  before  a  court  of 
law  in  one  state,  when  it  has  been  necessary  to  proceed  on  a  de- 
cree in  chancery  in  another.  In  Pennsylvania  where  there  is  no 
Court  of  Chancery,  should  there  be  occasion  to  proceed  on  a  de- 
cree in  chancery  in  another  state,  it  must  be  in  a  court  of  law,  or 
not  at  all.  The  great  objection  to  an  action  in  a  court  of  law,  is, 
that  in  general,  decrees  in  chancery  are  not  simply  for  the  pay- 
ment of  a  sum  of  money,  but  also  for  something  specific,  which  is 
ordered  to  be  done,  by  one  party  or  the  other.  In  such  cases  there 
would  be  great  difficulty  in  supporting  an  action  at  law.  But  the 
present  decree  being  simply  for  the  payment  of  money,  all  other 
considerations  may  be  thrown  aside.  It  is  a  general  principle,  that 
where  a  man  is  under  an  obligation  to  pay  a  certain  sum  of  money, 
whether  that  obligation  is  founded  on  a  contract,  or  the  judgment 
of  a  court,  an  action  of  debt  lies.  On  that  principle,  we  support 
actions  of  debt  on  foreign  judgments.  And  I  confess,  I  see  no  rea- 
son why  a  decree  in  chancery,  is  not  as  strong  as  a  foreign  judgment. 
If  it  be  objected,  that  proceedings  in  chancery  are  not  according 
to  the  course  of  the  common  law,  the  same  objection  lies  against 
judgment  of  courts  on  the  continent  of  Europe,  where  the  proceed- 
ings are  according  to  the  civil  law.  To  be  sure,  in  case  of  a  fo- 
reign judgment,  the  defendant  is  permitted  to  deny  the  original  cause 
of  action.  But  so  likewise  would  the  defendant  in  the  present  case 
have  been  permitted  to  enter  into  the  merits  of  the  original  con- 
troversy, were  it  not  for  the  ^constitution  and  laws  of  the  United 
Slates,  which  forbid  it.  The  objection,  therefore,  of  being  pre- 
cluded from  contesting  the  merits  of  the  decree,  does  not  lie  against 


262  SUPREME  COURT  [Philadelphia, 

(Evans,  Administratrix  of  Evans  c.  Tatem.) 

the  action  of  debt,  which  in  its  nature  did  not  preclude  it,  but 
against  the  constitution.  And  as  to  that,  all  that  can  be  said  is,  that 
although  in  some  instances  the  conclusiveness  of  judgments  may 
be. inconvenient,  yet  upon  the  whole,  it  produces  good;  and  whe- 
ther it  does  or  not,  this  court  has  no  power  to  alter  the  constitu- 
tion. I  have  said  that  this  subject  was  not  altogether  new.  It 
was  brought  before  the  Supreme  Court  of  New  York,  in  the  case 
of  Post,  6fc.  v.  Neafie,  3  Caines,  22.  That  was  an  action  on  a 
decree  in  chancery  in  New  Jersey,  for  the  payment  of  a  sum  of 
money,  and  a  majority  of  the  court  sustained  the  action.  By  the 
law  of  New  Jersey,  a  decree  in  equity  has  the  effect  of  a  judgment 
in  the  Supreme  Court  of  law.  Whether  the  state  of  Tennessee  has 
alaw  of  that  kind,  I  know  not;  but  it  appears  that  an  execution  may 
issue  there,  on  a  decree  in  equity,  as  on  a  judgment  at  law.  The 
Supreme  Court  of  Neio  York,  however,  did  not  decide  upon  the 
particular  circumstances  which  I  have  mentioned  in  the  law  of 
New  Jersey,  but  upon  broader  and  more  general  principles.  It 
has  been  objected,  that  courts  of  law  are  not  bound  to  give  effect 
to  decrees  founded  upon  principles  of  equity.  But  why  not? 
Granting  that  the  demand  did  originate  in  principles  of  equity, 
yet  after  a  fair  hearing,  and  full  consideration,  it  was  decided, 
that  the  plaintiff  was  entitled  to  a  certain  sum  of  money  to  be 
paid  by  the  defendant ;  what  reason  is  there  which  should  restrain 
a  court  of  law  from  sustaining  an  action  for  the  sum  thus  reduced 
to  a  certainty?  It  was  also  objected,  that  a  decree  in  chancery, 
may  be  opened,  altered,  or  annulled,  on  a  bill  of  review.  True  it 
may  ;  and  so  may  judgment  at  law  be  reversed  on  a  writ  of  error. 
But  still,  an  action  of  debt  lies  on  the  judgment,  as  long  as  it  is  in 
force.  Should  it  be  afterwards  reversed,  the  injured  party  would 
not  be  without  remedy,  and  the  same  would  be  the  case  should  a 
decree  in  chancery  be  reversed.  No  case  has  been  shown,  where 
it  has  been  decided  on  broad  principles,  that  an  action  at  law 
would  not  lie  for  a  sum  of  money  decreed  to  be  paid  by  the  court 
of  equity,  and  one  case,  (Post,  fyc.  v.  Neafie,)  has  been  shown  to 
the  contrary.  In  Pennsylvania,  the  courts  should  be  extremely 
cautious  in  establishing  that  principle,  because  it  would  be  shutting 
their  doors  against  all  relief  in  cases  where  money  has  been  de- 
creed to  be  paid  by  courts  of  equity  in  other  states.  Very  urgent 
cases  may  arise,  where  crying  injustice  would  be  done,  if  relief 
were  denied,  and,  we  ought  not  to  rely  on  the  equity  courts  of 
the  United  States,  which  may  be  established  in  Pennsylvania. 
Our  own  system  of  jurisprudence  should  be  complete.  In  consider- 
ing tnis  question,  we  should  throw  out  of  view,  any  redress  which 
may  be  accidentally  obtained,  in  courts  over  which  the  legislature 
of  this  state  has  no  control.  Upon  the  whole,  I  am  of  opinion, 
that  the  action  should  be  sustained,  and  this  judgment  of  the  Dis- 
trict Court  affirmed. 

Judgment  affirmed. 


March,  1823.]  OF  PENNSYLVANIA.  263 

[Philadelphia,  March  31,  1823.] 
In  the  case  of  the  Estate  of  MARTIN  SHAEFFER,  deceased. 

IN  ERROR. 

The  debtor  is  not  exempted  from  the  payment  of  interest  by  the  continued  absence 
of  the  creditor  at  a  distance  from  the  state,  and  his  not  being  heard  of  for  many 
years.  Therefore,  where  bonds  were  given  in  Northampton  County  for  a  portion 
of  a  distributive  share,  and  the  obligee  was  then  absent,  and  the  last  that  was 
heard  of  him  afterwards  was,  that  he  was  at  Natchez  in  1806,  and  administration 
was  t-iken  out  of  his  estate  in  1818,  on  the  presumption  of  Ins  death  ;  it  was  held, 
that  the  obligor  was  bound  to  pay  interest  on  the  bond. 

This  was  an  appeal  by  John  Schaeffer,  from  the  decree  of  the 
Orphans'  Court  of  Northampton  County. 

In  settling1  the  administration  accounts  of  John  Schaeffer,  the  ap- 
pellant, the  Register  of  Northampton  county,  charged  him  with 
two  sums,  one  of  £296  12s.  ($d.,  the  other  of  £153  165.  under  the 
following  circumstances  : 

Henry  Schaeffer,  the  elder,  father  of  Martin,  of  John,  and  of 
Henry  Schaeffer,  the  younger,  died  some  time  prior  to  the  12th  of 
•August,  1S01,  leaving  real  estate.  Proceeding's  by  petition  were 
instituted  in  the  Orphans'  Court,  the  real  estate  valued,  and  accept- 
ed at  the  valuation  by  Henry  Schaeffer  the  younger.  Henry  gave 
bonds  to  the  other  children  for  their  respective  shares,  and  among 
them,  a  bond  in  favour  of  Martin  Schaeffer,  for  £429  18s.  9d., 
payable  in  two  instalments,  one  on  the  12th  of  August,  1802,  of 
£286  12s.  6d.,  the  other  £143  6s.  3d.  to  be  paid  at  and  immediate- 
ly after  the  decease  of  Elizabeth  Schaeffer,  widow  of  Henry 
Schaeffer  the  elder. 

This  bond  was  deposited  in  the  office  of  the  clerk  of  the  Orphans' 
Court.  Elizabeth  Schaeffer  died  on  the  24th  December,  1801. 
On  the  13th  May,  1807,  John  Schaeffer,  and  Henry  the  younger, 
negotiated  an  exchange  of  properties.  And  as  part  of  the  conside- 
ration, John  agreed  to  pay  the  moneys  due  on  the  bond  to  Martin 
by  Henry,  on  the  27th  May,  1807. 

Martin  left  Northampton  in  the  year  1793.  The  last  intelli- 
gence had  of  him  by  any  of  the  family  was  in  1806,  by  letters  from 
Natchez.  It  was  presumed  that  he  had  died,  and  John  Schaeffer 
administered  to  his  estate  on  or  about  the  26th  August,  1818.  On 
the  12th  November,  1819,  he  filed  an  account  in  the  Register's  of- 
fice, and  charged  himself  with  the  principal  sums  due  Martin  from 
Henry,  vis  :  £286  12s.  6d.,  and  £143  6s.  3d.  The  Register  added 
a  charge  of  interest  upon  the  first  instalment  up  to  the  said  12th 
November,  amounting  to  £296  12s.  6d„  and  upon  the  second  instal- 
ment from  the  death  of  Elizabeth  Schaeffer,  to  the  same  time 
£153  16s. 

The  Orphans'  Court  upon  petition,  referred  the  account  to  audi- 
tors, who  reported  it  exactly  as  stated,  in  relation  to  the  charge  of 


264  SUPREME  COURT  [Philadelphia, 

(In  the  case  of  the  Estate  of  Martin  Schaeffer,  deceased.) 

interest  by  the  Register.     And,  upon  argument,  the  court  confirmed 
this  report,  with  some  trifling  alterations  in  other  points. 

The  appellant  now  excepted  to  the  charge  of  interest. 

Scott,  for  the  appellant,  contended,  that  as  Martin  Schaeffer  was 
absent  from  the  country  when  the  bond  to  him  was  payable,  and 
continued  absent  until  his  presumed  death,  and  for  the  greater  part 
of  the  time  he  was  not  heard  of  by  the  family,  nor  was  it  known 
whether  he  was  alive  or  dead,  the  appellant  was  not  bound  to  pay 
interest  on  the  bond.  It  is  a  principle  of  law,  that  where  payment 
of  the  principal  is  prevented  by  law,  or  by  the  act  of  the  party,  in- 
terest shall  not  run.  Here  John  Schaeffer  had  no  opportunity  to 
pay  the  principal,  but  was  prevented  by  the  voluntary  act  of  his 
creditor,  in  withdrawing  beyond  his  reach.  Interest  is  not  a  part 
of  the  debt,  but  something  added  by  way  of  damage  for  the  deten- 
tion. Thus  all  interest  on  British  debts  was  suspended  during  the 
war,  because  the  debtor  could  not  remit  the  principal.  Hoan  v. 
•Allen,  2  Dull.  102,  and  note.  Where  payment  of  the  principal  is 
prevented  by  law,  interest  is  suspended,  Conn  v.  Penn's  lessee,  1 
Pet.  524.  When  money  is  arrested  in  the  hands  of  a  garnishee, 
he  is,  for  the  same  reason,  exempted  from  interest.  The  debtor  is 
in  the  present  case  prevented  by  the  creditor  himself,  from  the  pos- 
sibility of  making  a  tender,  by  which  he  might  relieve  himself  from 
paying  interest,  and,  therefore,  stands  in  the  same  situation  as  if  a 
tender  had  been  made,  and  refused.  If  the  mortgagee  be  out  of  the 
realm  of  England,  the  mortgagor  is  not  bound  to  seek  him,  or  go 
out  of  the  realm  for  him  ;  and  as  the  mortgagee  is  the  cause  that  the 
mortgagor  cannot  ^tender  the  money,  the  feoffor  shall  enter  into  the 
land,  as  if  he  had  duly  tendered  it  according  to  the  condition.  Co. 
Lit.  210,  b.  In  Jacobs  y.  Adam,  1  Dull.  52,  a  payment  was  made 
to  executors,  named  in  a  will,  which  was  afterwards  set  aside  : 
it  was  held,  that  the  person  who  had  paid,  should  recover  back  the 
principal  without  interest.  There  is  no  case  to  be  found  in  which 
it  has  been  held,  that  the  debtor  is  bound  to  pay  interest,  under  cir- 
cumstances like  the  present. 

The  court  would  not  hear  Condy  for  the  appellee. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  John  Schaeffer,  the  administrator  of  Martin 
Schaeffer,  deceased,  appealed  from  the  decree  of  the  Orphans' 
Court  of  Northampton  County,  charging  him  with  interest  on 
certain  debts  under  the  following  circumstances  : 

Henry  Schaeffer,  the  elder,  father  of  Martin,  of  John,  and  of 
Henry  Schaeffer,  the  younger,  died  some  time  before  the  12th  of 
August,  1805,  intestate,  leaving  real  estate.  Proceedings  were  had 
in  the  Orphans'  Court,  the  estate  was  valued,  and  accepted  at  the 
valuation  by  Henry,  who  gave  bonds  to  the  children  for  their  re- 
spective shares,  and  among  them  a  bond  to  Martin,  for  £429  18s. 
9^/.,  payable  in  two  instalments,  one  on  the  12th  August,  1802,  for 


March,  1823.]  OF  PENNSYLVANIA.  2G5 

(In  the  Case  of  the  Estate  of  Martin  Schaeffer,  deceased.) 

<£286  125.  6d.,  the  other  for  <£143  65.  3d.,  to  be  paid  on  the  wi- 
dow's death.  Martin,  being  absent,  the  bond  was  deposited  in  the 
office  of  the  clerk  of  the  Orphans'  Court.  The  widow  died  on  the 
24th  December,  1801.  On  the  18th  May,  1807,  John  and  Henry 
made  an  exchange  of  lands.  Sufficient  appears  to  show,  that  Henry 
gave  in  exchange  the  land  taken  at  the  valuation  by  him,  and  as 
part  of  the  consideration,  John  agreed  to  pay  this  bond,  with  interest, 
to  become  due  after  the  27th  May,  1807,  and  to  indemnify  Henry. 
The  interest  due  on  the  bond  up  to  the  time  of  exchange,  was  cal- 
culated and  allowed  to  John,  as  a  part  of  the  consideration  money, 
to  be  paid  to  Henry.  Martin  left  Northampton  in  1793,  and  no  ac- 
count was  received  of  him  until  1806,  when  his  friends  received 
letters  from  him  dated  at  Natchez.  Natchez  had  then  been  ceded 
to  the  United  States,  possession  taken,  and  was  under  the  govern- 
ment and  jurisdiction  of  the  United  States.  No  further  account 
was  received  from  him  ;  where  he  lived  or  died  was  unknown,  but 
it  was  presumed  he  was  dead ;  and  in  August,  1808,  John  admi- 
nistered, and  on  the  12th  November,  1819,  he  filed  an  administra- 
tion account  in  the  Register's  office,  and  charged  himself  with  the 
principal,  and  the  Register  added  a  charge  of  interest  on  the  instal- 
ments, on  the  first  j£296  125.  6d.  and  on  the  second  from  the  death 
of  the  widow.  The  Orphans'  Court  confirmed  the  account  as  set- 
tled by  the  Register,  and  from  this  decree,  John  has  taken  this  ap- 
peal, alleging,  that  inasmuch  as  it  was  not  known  where  Martin 
was  to  be  found,  or  whether  he  was  alive  or  dead  ;  he  was  not  bound 
to  make  a  tender  to  him,  nor  could  he  do  so,  and  that  he  stands 
precisely  as  if  he  had  made  the  tender,  and  Martin  had  refused; 
in  short,  as  if  this  was  an  action  on  the  bond,  with  a  plea  of  tender, 
tout  temps  prist,  and  the  money  brought  into  court.  If  John  is 
absolved  from  the  payment  of  interest,  he  must  show  some  strict 
rule  of  law,  which  produces  this  consequence,  for  our  sense  of  jus- 
tice revolts  at  it,  and  we  should  regret  to  find  any  principle  of  law 
which  would  screen  him  from  paying  this  just  debt ;  for  the  interest 
due  on  this  bond,  is  as  much  due  ex  debito  justitice,  as  the  princi- 
pal is. 

A  condition,  on  the  non-performance  of  which  a  forfeiture  is  to 
be  incurred,  or  on  the  performance  of  which,  an  estate  is  to  be  raised 
or  re-vested,  is  a  very  different  matter  from  a  condition  to  pay  mo- 
ney, which  works  no  injury,  but  is  barely  a  compensation  for  the 
use  of  the  monev.  As  to  the  forfeiture  of  double  the  sum,  that  is 
now  merely  nominal.  And  even  in  the  first  cases,  if  the  obligee 
is  out  of  the  realm,  the  obligor  is  not  bound  to  go  out  of  the  realm 
unto  him,  and  because  the  feoffee  is  the  cause,  that  the  feoffor  can- 
not tender  the  monev,  the  feoffor  shall  enter  into  the  land  as  if 
he  had  duly  tendered  it,  according  to  the  condition.  Co.  Lift.  210. 
And  here  there  is  no  evidence  that  ever  Martin  remained  out  of 
the  United  States.  The  only  account  we  have  of  him,  is  in  the 
jurisdiction  of  the  United  States.     If  this  would  excuse  a  tender, 

vol.  ix.  2  L 


266  SUPREME  COURT  [Philadelphia, 

(In  the  Case  of  the  Estate  of  Martin  Schaeffer,  deceased.) 

then  John  ought  to  have  clearly  proved  the  fact.     But  where  money- 
is  secured  by  bond,  payment  is  at  the  peril  of  the  obligor,  and  it  is 
no  great  burden  on  him  to  pay  interest.     I  say  nothing  of  legal  im- 
pediments, but  speak  of  the  absence  of  the  obligee.     Now  the  ab- 
sent creditor,  I  mean  absent  beyond  sea,  is  a  privileged  creditor. 
The  act  of  limitations  does  not  run  against  him,  until  he  come  with- 
in the  United  States;  if  he  is  within  the    United  States  after  the 
debt  becomes  payable,  it  then  first  runs,  and  continues  to  run,  not- 
withstanding subsequent  absence  beyond  sea.  It  would  seem  equally 
reasonable,  that  his  interest  should  be  as  much  protected  by  his  ab- 
sence, as  the  principal.     When  Martin  died  we  have  no  account  of. 
From  his  silence  after  1806,  the  presumption  is,  that  he  died  about 
that  time  ;  and  John  with  full  knowledge  that  in  1806,  he  was  alive 
at  Natchez,  promises  for  a  full  consideration  to  pay  the  debt,  with 
the  interest  that  should  accrue  in  1807.     If  he   then   died,  even 
limitation,  if  the  bond  was  within  the  limitation  law,  would  not  ef- 
fect this  claim,  until  administration  was  taken  out;  for  if  A.  receive 
money  belonging  to  a  person,  who   afterwards  dies  intestate,  and 
to  whom  B.  takes  out  administration,  and  brings  an  action  against 
A.,  who  pleads  the  statute  of  limitations,  and  plaintiff  replies  show- 
ing administration  not  committed  to  him  within  6  years,  though  6 
years  have  expired  since  the  receipt  of  the  money,  yet  not  being 
so  since  the  administration  committed,  the  action  is  not  barred  by 
the  statute.     Curry  v.   Stevenson,  SalL  421.     If  the  principle  be 
true,  that  absence  is  an  answer  to  a  demand  of  interest,  because 
there  is  no  one  to  whom  the  principal  can  be  tendered,  then  this 
consequence  would  follow,  as  death  would  more  effectually  preclude 
a  tender,  interest  could  never  be  recoverable  mesne  between   the 
death  of  the  creditor  and  taking  out  letters  of  administration.    This 
is  very  certain,  that  John  has  not  discovered  much  anxiety  to  find 
him  out,  and  to  inform  him  that  his  money  was  ready  for  him. 

Whenever  the  law  prohibits  the  payment  of  the  principal,  in- 
terest during  the  existence  of  the  prohibition,  is  not  demandable, 
Hoare  v.  Allen,  2  Ball.  102.  Even  a  state  of  war  existing*  be- 
tween the  two  nations,  is  not  a  sufficient  reason  for  abating  interest, 
on  debts  due  by  the  subjects  of  one  belligerent  to  another,  Conn. 
Sf  M.  v.  Penn,  Peters,  Rep.  524,  unless  all  intercourse  is  forbidden 
by  law.  But  here  is  an  express  promise  by  John  to  pay  Martin 
this  interest,  and  where  the  principal  belonged  to  infants  in  Ireland, 
and  the  obligor  resided  here,  and  there  was  proof  of  an  express 
promise  by  the  obligor  to  pay  all  the  interest,  it  was  held  to  be  re- 
coverable.    Exors.  of  Mease  v.  Rhodes,  cited  2  Dall  132,  133. 

There  is  but  one  case  in  which  uncore  prist,  without  tender,  has 
been  deemed  a  good  plea,  and  that  is,  in  case  of  a  legacy,  or 
bond  given  for  the  performance  of  a  will.  1  Lev.  87.  Stanning's 
Case,  Poph.  102.  Thomson  8f  Wife  v.  The  Exors.  of  Young 
Blood,  1  Bay,  249,  and  Knapp  v.  Powell,  Pr.  Ch.  11, 


March,  1823.]  OF  PENNSYLVANIA.  267 

(In  the  Case  of  the  Estate  of  Martin  Schaeffer^  deceased.) 

It  is  the  duty  of  a  legatee  to  demand  his  legacy,  to  make 
himself  known  to  the  executor,  as  there  is  no  privity  between 
them.  Yet  even  in  that  case,  it  would  seem,  that  he  should  make 
out  what  his  plea  states,  that  he  has  been  always  ready,  and  the 
money  by  him.  For  if  he  has  used  the  money,  he  ought  to  pay 
interest.  There  is,  however,  no  strict  obligation  on  the  executor 
to  scent  out  the  legatee,  and  make  a  tender  to  him,  as  there  is  in 
the  case  of  an  original  debtor,  who  must  pay  at  his  peril.  But  if  the 
fund  on  which  the  legacy  is  charged  produces  an  interest,  then  the 
legatee  is  entitled  to  interest.  In  Slanning's  Case,  there  is  another 
principle  stated,  which  is,  that  if  the  obligee  fraudulently  keeps 
out  of  the  way  of  the  obligor,  to  avoid  a  tender,  this  would  be  equi- 
valent to  a  tender.  This  seems  reasonable.  But  it  is  a  state  of 
things  not  likely  to  occur  again  in  this  country.  It  once  did,  when 
continental  money  was  a  legal  tender.  Then  the  debtor  followed 
his  flying  creditor,  hunted  him  down  with  as  little  mercy  as  the 
creditor  after  the  return  of  peace,  pursued  the  debtor.  It  has  been 
said,  that  there  is  no  express  decision  to  be  found  in  the  books. 
I  think  there  is  ;  but  if  there  were  not,  it  is  because  the  objection  to 
payment  of  interest  was  never  considered  as  tenable ;  the  right  has 
never  been  questioned.  It  is  not  from  decided  cases  alone,  that 
we  are  to  take  the  law.  Long  continued  usage  without  objection, 
makes  the  law,  though  the  point  has  never  been  raised  in  argument. 

The  correspondence  between  Mr.  Jefferson  and  Mr.  Hammond, 
subjoined  to  the  case  of  Hoare  v.  Allen,  and  Conn.  v.  Penn's  Les- 
see, and  the  authorities  referred  to,  establish,  that  the  absence  be- 
■yond  sea  of  a  creditor,  is  no  impediment  to  the  recovery  of  interest. 
In  the  very  able  letter  of  Mr.  Jefferson,  the  subject  is  fully  consi- 
dered, and  the  exemption  from  interest  on  the  ground  of  absence, 
never  claimed.  Indeed,  had  this  been  considered  as  the  law,  the  long 
protracted  controversy  about  payment  of  interest  on  British  debts 
during  the  revolutionary  war,  would  have  been  a  very  idle  one.  In 
all  the  contested  cases  in  courts  of  justice,  the  exemption  was 
claimed  on  account  of  the  war,  and  prohibition  of  intercourse  with 
the  belligerent  nation.  I  transiently  glance  at  the  consideration  of 
the  question  of  interest  during  a  war,  and  prohibition  of  intercourse. 
The  case  does  not  call  for  any  opinion  on  it.  The  decision  of 
Judge  Washington,  in  Conn.  v.  Penn's  Lessee,  is  of  high  authority. 
But  this  long  and  anxiously  contested  question  of  interest  during 
the  revolutionary  war  on  British  debts,  as  well  as  the  correspon- 
dence I  have  referred,  prove  with  a  degree  of  force,  equal  to  any 
accumulation  of  precedents,  that  interest  is  not  suspended  during 
the  absence  of  the  creditor  beyond  sea.  Law  may  exist,  and  may 
not  be  found  in  the  books :  for  that  may  be  law  which  in  point  of 
principle,  is  so  clear,  that  it  never  occurred  to  any  man  to  question 
it,  till  a  case  came  to  draw  it  into  doubt. 

Justice  requires  that  John  should  at  least  be  not  more  favoured 
than  Henry  would  be  in  a  suit  brought  on  the  bond.     He  has  pre- 


2G8 


SUPREME  COURT 


[Philadelphia, 


(In  the  Case  of  the  Estate  of  Martin  Schaeffer,  deceased.) 

vented  that  in  some  measure,  by  taking  out  administration  himself, 
and  thus  becoming  in  fact  both  debtor  and  creditor.  In  law  Henry 
would  not  be  discharged  from  interest.  Let  us  see  what  are  John's 
equitable  pretences.  In  equity,  it  is  precisely  as  if  Henry  had 
paid  him  the  money.  It  was  payment.  Retainer  is  payment.  As 
a  trustee,  voluntarily  undertaking  the  office,  he  would  be  responsible 
for  interest.  He  used  the  money,  and  if  he  did  not  use  it,  he 
should  prove  the  fact,  that  it  was  always  lying  by  him. 

A  purchaser  discovering  an  incumbrance,  may  retain  ;  and  if  he 
does,  enjoying  the  profits  of  the  land,  he  must  pay  interest. 

It  is  not  always  true,  that  if  a  man  cannot  be  called  on  for  the 
principal,  he  is  not  chargeable  with  interest.  For  where  vendee 
goes  into  possession  before  conveyance,  though  the  principal  cannot 
be  demanded  until  conveyance  tendered,  he  is  chargeable  with  in- 
terest. So  where  the  vendor  suffers  the  money  to  remain  in  the 
hands  of  the  vendee,  for  the  purpose  of  discharging  incumbrances 
on  the  land,  the  vendee  must  allow  interest.  That  was  this  very 
case. 

The  amount  of  this  incumbrance,  by  the  acceptance  by  Henry  of 
the  father's  land  at  a  valuation,  was  left  in  John's  hands,  who 
bought  the  land,  for  the  purpose  of  discharging  this  bond.  In  every 
view  of  the  subject,  legally  or  equitably  considered,  the  decree  of 
confirmation  by  the  Orphans'  Court  was  right. 

Proceedings  confirmed,  and  record  remitted  to  the  Orphans' 
Court  for  execution. 

Proceedings  confirmed. 


[Philadelphia,  March  31,  1823.] 

JOURDAN  against  JOURDAN. 


IN  ERROR. 


The  deed  of  a  feme  covert  is  void,  if  it  do  not  appear  from  the  certificate  of  her  ac- 
knowledgment, that  she  was  examined  separately  and  apart  from  her  husband. 
Stating  that  she  voluntarily  consented  thereto,,  will  not  cure  the  defect.  Nor  is 
the  parol  evidence  of  the  magistrate  admissible,  to  show  a  separate  examination. 

In  Pennsylvania,  a  collateral  warranty  descends  on  the  eldest  son. 

Where  the  deed  executed  by  a  married  woman  is  void,  parol  evidence  is  admissible 
to  show,  that  after  her  husband's  death  she  delivered  and  ratified  it. 

Circumstances  may  be  proved,  from  which  the  jury  may  infer  such  delivery. 

Evidence  of  circumstances  to  show  a  family  arrangement  at  the  execution  of  deeds, 
is  admissible:  and  a  deed  otherwise  invalid,  would  be  good  evidence  if  it  formed  a 
component  part  of  such  arrangement. 

Error  to  the  Court  of  Common  Pleas  of  Chester  eounty,  in  an 
ejectment  brought  by  John  Jourdan,  the  plaintiff  below,  against 
Hugh  Joitrdan,  the  defendant  below,  and  plaintiff  in  error,  tried 
before  Hallowell,  President,  who,  with  the  associate  Justices 
of  Chester  county,  held  a  special  court  for  the  trial  of  causes  in 


March,  1823.]  OF  PENNSYLVANIA.  269 

(Jourdan  v.  Jourdan.) 

which  Darlington,  President,  had  been  of  counsel.  In  the  court 
below,  a  verdict  and  judgment  were  had  for  the  plaintiff,  and  seve- 
ral exceptions  on  points  of  evidence,  were  taken  by  the  defendant. 

The  bill  of  exceptions  stated,  that  the  plaintiff  gave  in  evidence, 
deeds  and  other  testimony  showing-,  that  Hugh  Stewart  was  seised 
in  fee  of  the  premises  claimed  in  the  declaration,  and  died  intestate, 
leaving  one  daughter,  Saarh,  his  only  child,  who  intermarried  with 
John  Jourdan,  the  father  of  the  plaintiff  and  defendant :  and  that 
she  had  in  all  five  children,  viz.  Hugh,  the  defendant,  the  eldest 
son,  John,  the  plaintiff,  Steioart,  Jinn,  wife  of  James  Sleen,  and 
Lilly,  wife  of  Joseph  Filson.  John  the  father  died  intestate,  leaving 
Sarah,  his  wife  surviving,  and  Sarah  died  after  the  year  1794,  in- 
testate, leaving  the  above  named  child  surviving  her.  The  de- 
fendant gave  in  evidence  the  following  deeds,  viz :  one  dated  Sep- 
tember 29th,  1807,  from  John  Jourdan,  the  plaintiff,  to  Sarah,  his 
mother,  Hugh,  James  Steen,  and  Ann,  his  wife,  Joseph  Filson,  and 
Lilly  his  wife,  and  Stewart  Jourdan.  One  other,  of  the  same  date, 
from  Sarah,  Hugh  and  his  wife,  Joseph  Filson  and  Lilly  his  wife, 
Ja??ies  Steen  and  Ann  his  wife,  to  John  the  plaintiff.  One  other, 
dated  the  13th  April,  1810,  from  Sarah,  Hugh,  and  Joseph  Filson, 
and  Lilly  his  wife,  to  James  Steen. 

And  the  defendant  then  offered  in  evidence  : 

1.  The  testimony  of  Robert  Miller,  Esq.  a  justice  of  the  peace, 
before  whom  the  said  deed  of  the  29th  September,  1807,  were  exe- 
cuted, to  prove,  that  at  the  time  of  executing  the  said  deeds,  a  certain 
other  deed  from  John  Jourdan,  the  father,  and  Sarah  his  wife,  to  the 
defendant  Hugh,  dated  the  31st  December,  1802,  conveying  the  pre- 
mises in  question,  was  read  in  the  presence  of  John,  the  plaintiff. 
This  testimony  was  objected  to  by  the  plaintiff,  and  overruled  by  the 
court. 

2.  The  above  mentioned  deed,  dated  the  31st  December  1802, 
from  John  Jourdan,  father  of  the  plaintiff  and  defendant,  and  Sarah 
his  wife,  to  the  defendant,  for  the  land  in  dispute,  which  was  duly 
executed  by  them,  and  acknowledged  before  James  M.  Gibbons,  a 
justice  of  the  peace  of  Chester  county  :  but  though  the  certificate  of 
the  magistrate  stated,  that  the  wife  voluntarily  consented,  it  did  not 
state  that  she  was  examined  separate  and  apart  from  her  husband. 
The  deed  was,  on  that  account,  objected  to  by  the  plaintiff,  and  over- 
ruled by  the  court. 

3.  The  defendant  offered  to  prove  by  James  M.  Gibbons,  Esq.  that 
the  said  Sarah  was  by  him  examined  separately  and  apart  from  her 
husband,  and  on  the  examination,  the  contents  of  the  deed  were  by 
him  made  known  to  her,  and  she  declared  that  she  voluntarily,  and 
without  coercion  consented  thereto,  and  that  the  insertion  of  these 
facts  was  omitted  by  accident  and  mistake.  But  this  testimony 
being  objected  to  by  the  plaintiff,  the  court  rejected  it. 

4.  The  defendant  further  offered  the  said  deed  of  December  71, 


270 


SUPREME  COURT 


[Philadelphia, 


(Jourdan  v.  Jourdan.) 

1802,  as  the  deed  of  John  Jourdan,  the  father,  and  containing  a 
warranty  against  his  heirs  claiming  either  under  him  or  their  mo- 
ther Sarah,  accompanied  with  an  offer  to  prove,  that  lands  de- 
scended in  fee  simple  from  the  said  John,  the  father,  to  the  plaintiff, 
more  than  equal  in  value  to  the  premises  claimed  in  this  ejectment. 
The  plaintiff  also  objected  to  this  evidence,  and  the  court  over- 
ruled it. 

5.  The  defendant  offered  to  prove,  that  Sarah,  the  mother,  after 
the  death  of  John,  the  father,  namely,  in  April,  1810,  at  the  time 
when  she  joined  with  Hugh,  the  defendant,  and  Joseph  Filson,  and 
Lilly  his  wife,  in  the  execution  of  the  release  to  James  Steen,  of 
the  same  date  delivered  and  ratified  the  deed  of  December  31st, 
1802,  from  her  husband  and  herself  to  the  defendant:  that  the  said 
deed  was  distinctly  read  over  to  her,  and  she  expressed  herself  sa- 
tisfied with  it,  and  gave  it  her  consent,  and  it  was  again  delivered 
to  the  defendant,  and  after  this  she  permitted  the  defendant  to  erect 
a  barn  and  other  improvements  on  the  land  conveyed  by  it,  at  his 
own  expense,  and  that  she  called  it  his  land,  and  that  after  her 
death  he  was  to  have  the  land,  according1  to  the  provisions  of  the 
deed.  This  evidence  was  also  objected  to,  and  overruled  by  the 
court. 

6.  The  defendant  farther  offered  parol  evidence,  and  the  follow- 
ing documents  and  papers,  to  prove  a  family  arrangement  by  and 
among  the  children  of  the  said  John  and  Sarah,  under  which  the 
defendant  was  to  have  the  premises  in  dispute,  as  his  share  and  pur- 
part of  his  father  and  mother's  estate.  1.  A  letter  of  attorney, 
dated  1st  December,  1804,  from  John,  the  father,  to  the  defendant 
and  James  Steen,  who  had  married  one  of  the  daughters.  2.  The 
record  of  an  action  in  the  court  of  Common  Pleas  of  Chester  county, 
in  which  the  plaintiff  in  this  ejectment  was  plaintiff,  and  the  defen- 
dant and  James  Steen  were  defendants,  including  the  papers 
furnished  to  the  defendants  therein  by  the  plaintiff,  in  compliance 
with  the  oyer  craved  in  the  said  suit.  3.  An  article  of  agreement 
between  the  defendant  and  James  Steen,  attorneys  in  fact  of  John 
the  father,  dated  May  12th,  1807.  This  evidence  was  objected  to 
by  the  plaintiff,  and  overruled  by  the  court. 

Condy,  for  the  plaintiff  in  error,  considered  the  following  ques- 
tions : 

1.  Does  collateral  warranty  with  assets  bar. 

2.  What  is  the  effect  of  the  acknowledgment  by  Sarah  Jour- 
dan? 

3.  If  it  was  insufficient  on  its  face,  could  the  defect  be  supplied 
by  the  parol  evidence  offered  ? 

4.  Was  not  evidence  admissible,  that  the  feme  ratified  the  deed, 
after  she  ceased  to  be  covert  ? 

5.  Whether  the  evidence  was  admissible,  to  prove  a  family  ar- 
rangement, under  which  each  child  was  to  have  a  portion  ? 


March,  1823.]  OF  PENNSYLVANIA.  271 

(Jourdan  v.  Jourdan.) 

1.  This  warranty  was  a  collateral  warranty,  because  the  land 
being  owned  by  the  mother,  it  was  impossible  that  the  defendant, 
the  grantee,  could  inherit  it  from  the  father  who  made  the  warran- 
ty. At  common  law,  such  warranty  barred  the  heir  on  whom  it 
descended,  without  any  assets,  except  wdiere  the  warranty  com- 
menced by  disseisin.  Lit.  sec.  697.  7  Bac.  Ah.  235.  Tit.  War- 
ranty, I.  A  warranty  by  a  tenant  by  the  curtesy  wTas  a  bar  to 
the  heir  without  assets,  Lit.  Sec.  724,  725.  But  the  stat.  of  Glou- 
cester, 6  E.  1  C.  3,  has  made  considerable  alteration  in  the  doc- 
trine, and  by  that  statute,  a  warranty  by  a  tenant  by  the  curtesy  is 
no  bar  to  the  heir,  without  assets  in  fee  simple  :  Co.  Lit.  379,  380. 
But  if  a  husband  convey  the  estate  of  his  wife  with  warranty,  and 
leave  assets,  this  bars  the  heir  notwithsanding  the  statute  of  Glou- 
cester. Littleton,  Sec.  728,  says,  that  "  by  force  of  the  same 
statute,  if  the  husband  of  the  wife  alien  the  heritage  or  marriage  of 
his  wife  in  fee,  with  warranty,  &c.  by  his  deed  in  country,  it  is 
clear  law,  that  this  warranty  shall  not  bar  his  heir,  unless  he  hath 
assets  by  descent;"  and  Lord  Coke  366,  a.  "  if  the  husband  be 
seised  of  lands  in  right  of  his  wife,  and  maketh  a  feoffment  in  fee 
with  warranty,  the  wife  dieth  and  the  husband  dieth,  this  shall  not 
bind  the  heir  of  the  wife  without  assets."  By  the  statute  of  4  and 
5  Ann.  c.  16,  all  collateral  warranties  to  be  made  after  a  certain 
date,  of  any  lands,  tenements,  or  hereditaments,  by  any  ancestor 
who  has  no  estate  of  inheritance  in  possession  in  the  same,  are  void 
against  his  heir.  But  though  the  statute  of  Gloucester  extended, 
to  Pennsylvania,  Report  of  the  Judges  of  the  Supreme  Court, 
3  Binn.  602,  yet  the  statute  of  Ann  does  not:  and  it  has  been  de- 
cided by  this  court,  that  a  collateral  warranty  by  tenant  by  the  cur- 
tesy with  assets  is  a  bar  to  the  heir.  Eshelman  v.  Hoke,  4  Ball. 
168.  4  Yeates,  509,  S.  C.  The  principle  on  which  a  collateral  war- 
ranty bars,  is  the  same  as  that  adopted  by  equity,  that  one  shall  not 
claim  under  a  will,  and  at  the  same  time  defeat  it  in  part. 

2.  Though  the  acknowledgment  does  not  pursue  the  words  of  the 
act  of  assembly,  in  stating  that  the  wife  was  separately  examined, 
yet  sufficient  appears  to  show  that  such  was  the  case.  The  acknow- 
ledgment states,  that  she  voluntarily  consented,  which  implies  that 
the  husband  was  not  present :  for  if  he  were  present,  she  could 
have  no  will.  It  has  been  held,  that  no  particular  form  of  words 
is  necessary  to  make  the  acknowledgment  good :  the  words  of  the 
act  need  not  be  used  if  its  directions  are  substantially  complied 
with.  M'Intire's  lessee  v.  Ward,  5  Binn.  301.  This  inference 
is  strengthened  by  the  presumption  of  the  law,  that  the  magistrate, 
in  his  official  acts,  fulfilled  his  duty,  where  nothing  appears  to  the 
contrary.     Shatter  v.  Brand,  6  Binn. 447. 

3.  Evidence  ought  to  have  been  admitted  to  show,  that  the  omis- 
sion of  the  magistrate  was*  by  accident,  or  mistake,  and  that  the 
wife  was  separately  examined  in  conformity  to  the  act.  The  act  of 
assembly  docs  not  declare  at  what  time  the  magistrate  shall   make 


272  SUPREME  COURT  [Philadelphia, 

(Jourdan  v.  Jourdan.) 

his  certificate :  and  if  he  might  make  a  second  certificate  according 
to  the  truth,  he  might  state  the  same  thing  on  oath.  In  Pennsyl- 
vania, it  is  a  settled  rule,  that  parol  evidence  may  be  given  of  what 
passes  in  the  presence  of  the  parties  immediately  before  or  at  the 
execution  of  a  deed,  to  show  a  mistake,  and  there  is  no  reason  why 
the  same  principle  may  not  be  applied  to  an  acknowledgment. 

4.  The  court  below  was  manifestly  wrong  in  rejecting  the  cir- 
cumstances offered  to  show  a  subsequent  confirmation  by  Sarah 
Jourdan,  after  the  death  of  her  husband.  The  evidence  offered 
was  strong  to  this  point,  and  would  probably  have  satisfied  the 
jury  of  her  confirmation  and  redelivery  of  the  deed.  In  Goodright 
v.  Strahan,  Cowp.  201,  it  was  decided,  that  redelivery  by  the 
feme,  after  the  death  of  the  husband,  of  a  deed  delivered  by  her 
whilst  covert,  is  a  sufficient  confirmation  of  such  deed,  so  as  to  bind 
her,  without  its  being  re-executed  or  re-attested  :  and  that  circum- 
stances alone  maybe  equivalent  to  such  redelivery,  though  the  deed 
be  a  joint  deed  by  baron  and  feme  affecting  the  wife's  land,  and  no 
fine  levied. 

6.  As  the  evidence  of  the  family  arrangement.  Sarah  Jour- 
dan, was  the  daughter  of  Hugh  Stewart,  and  it  was  his  desire 
that  his  grandson  Hugh,  the  eldest  son  of  his  daughter  Sarah, 
should  have  the  land  which  his  daughter  received  from  him.  In 
the  power  of  attorney  of  the  1st  December,  1804,  John  Jourdan, 
the  father  to  Hugh,  it  is  said,  that  Hugh  was  not  entitled  to  any 
portion  of  his  father's  estate,  because,  as  we  contend,  it  had  been 
agreed  among  the  family  that  Hugh  should  have  his  mother's  es- 
tate, and  no  part  of  his  father's  estate.  These  and  other  circum- 
stances ought  to  have  been  permitted  to  go  to  the  jury,  to  show  an 
equitable  title  in  us,  which  was  good  against  tlie  plaintiff,  and  all 
who  were  parties  to  the  agreement. 

Tilghman,  contra,  contended: 

1.  That  in  the  present  case,  the  collateral  warranty  was  no  bar, 
because  a  warranty  descends  on  the  heir  at  common  law,  7  Bac. 
ab.  229.  1  Inst.  12:  and  in  the  present  case  Hugh,  the  defendant, 
being  the  eldest  son,  was  the  heir  at  common  law,  and  on  him  it 
descended.  Thus  the  text  of  Littleton  is  express,  that  where  lands 
are  descendable  by  the  custom  of  borough  English,  to  the  youngest 
son,  or  are  gavelkind,  and  go  to  all  the  brothers,  the  warranty  by 
the  ancestors,  descends  only  to  the  eldest  brother,  who  is  the  heir 
at  common  law,  and  the  others  shall  not  be  barred  though  they  are 
heirs  to  his  lands  and  tenements.  Lit.  Sec.  735,  736.  In  Penn- 
sylvania, though  the  lands  of  the  intestate  descend  to  the  children 
equally,  yet,  the  warranty  descends  only  to  the  heir  at  common 
law,  namely,  the  eldest  son. 

2.  On  the  second  point  the  court  stopped  the  counsel  from  ar- 
guing. 

3.  The  requisites  of  the  act  of  assembly  must  appear  in  the  cer- 
tificate itself,  and  cannot  be  supplied  by  parol  proof.     In    Walton's 


March,  1823.]  OF  PENNSYLVANIA.  273 

(Jourdan  v.  Jourdan.) 

lessee  v.  Bailey,  1  Binn.  470,  an  attempt  was  made  to  supply  the 
defect  of  the  certificate  by  parol  proof,  but  the  court  determined, 
that  it  ought  not  to  be  received.  The  principle  of  this  case  was 
recognised  in  Commonwealth  v.  Jones,  3  Serg.  <$•  Rawle,  158,  in 
which  it  was  held,  that  parol  proof  is  not  admissible  to  show  the 
assent  of  the  parties  to  the  assignment  of  an  indenture  of  appren- 
ticeship, but  it  must  officially  appear  in  the  certificate  of  the  ma- 
gistrate. 

4.  No  offer  was  made  to  prove  re-delivery  of  the  deed  by  the 
widow,  except  from  circumstances  :  and  whether  these  should  go 
to  the  jury,  was  for  the  court  to  decide,  on  a  view  of  them  all. 

5.  There  was  nothing  in  any  of  the  papers  which  went  to  show 
a  family  arrangement. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  ejectment  for  a  tract  of  land  in 
Chester  County,  brought  by  John  Jourdan,  the  defendant  in  error, 
who  was  plaintiff  below,  against  Hugh  Jourdan.  On  the  trial  in 
the  Court  of  Common  Pleas,  the  defendant  offered  sundry  matters, 
both  written  and  parol  in  evidence,  which  were  rejected  by  the 
court,  whereupon  the  counsel  for  the  defendant  excepted  to  their 
opinion. 

1st.  The  first  evidence  rejected,  was  a  deed  from  John  Jourdan, 
Senr.,  and  Sarah  his  wife,  to  their  son  Hugh  Jourdan,  the  de- 
fendant, for  the  land  in  dispute,  which  was  the  estate  of  the  said 
Sarah.  This  deed  was  acknowledged  by  both  the  grantors,  before 
James  M.  Gibbons,  a  Justice  of  the  Peace  of  Chester  County,  as 
appeared  by  his  certificate  ;  but  it  did  not  appear  that  the  wife  was 
examined  separate,  and  apart  from  her  husband,  and  that  was  the 
reason  of  its  rejection. 

As  to  the  acknowledgment  of  deeds  by  married  women,  the 
principle  now  firmly  established  is,  that  the  requisites  of  the  act  of 
assembly,  by  which  the  mode  of  conveyance  by  femes  covert  is 
prescribed,  must  appear  to  have  been  substantially  complied  with, 
OTi  the  face  of  the  certificate,  made  by  the  magistrate  by  whom  the 
acknowledgment  was  taken.  Watson's  Lee  v.  Bailey,  is  the 
leading  case,  1  Bin.  470;  since  which  have  been  the  cases  of  M'ln- 
tire  v.  Ward,  5  Bin.  296,  Shatter  v.  Brand,  6  Bin.  435,  Evans 
v.  The  Commonwealth,  4  S.  §  R.  272.  Watson  v.  Moreen,  6  S. 
6r  R.  49,  and  Hopkins  v.  Birchall,  6  S.  fy  R.  143.  And  in  con- 
formity with  this  principle,  the  counsel  for  the  defendant  has  con- 
tended, that  it  substantially  appears,  the  wife  was  examined  sepa- 
rate and  apart  from  her  husband,  because  it  is  certified  by  the  ma- 
gistrate, that  she  voluntarily  consented,  which  she  could  not  do, 
if  her  husband  were  present ;  because,  then,  it  would  be  presumed, 
that  she  was  under  coercion.  This  argument  is  too  refined.  A 
separate  examination  is  essential,  and  ought  sufficiently  to  appear. 
In  the  present  instance,  the  magistrate  certifies,  that  the  feme  vo- 

vol.  ix.  2  M 


274  SUPREME  COURT  [Philadelphia, 

(Jourdan  v.  Jourihn.) 

luntarily   cojisenfed.     We  arc  to  understand   by  that,  that    being 
asked    by  the    magistrate,  whether    she   made    her    acknowledg- 
ment of  her  own  free  will,  without  any  coercion  or  compulsion  of 
her  husband,  she  answered  in  the  affirmative.     Nothing  more  can 
be  fairly  implied.     Whether  this  examination  was  in  the  presence 
of  the  husband,  or  not,  does  not  appear,  nor  is  there   any  ground 
for  inference  on  that  point.     It  might  in  truth  be,  that  she  freely 
consented,  though  her  husband  was  present.     But  that  will  not  sa- 
tisfy the  law.     Examine  the  woman  how  you  will,  it  is  impossible 
to  ascertain  with  certainty,  whether  she  gives  her  free  consent ;  her 
word  must  be  taken  for  that.     She  may  in  fact,  be  under  terror, 
though  she  be  examined  in  the  absence  of  her  husband.     But  there 
is  a  better  chance  for  her  speaking  her  real  sentiments,  in  his   ab- 
sence than  in  his  presence.     And  it  is  difficult  for  the  law  to  pro- 
tect her  further,  than  by  giving  her  an  opportunity  of  disclosing 
her  mind  to  the  magistrate,  out  of  the  presence  of  her  husband. 
The  act,  therefore,  directs  this  examination  of  the  wife  to  be  sepa- 
rate and  apart  from  the  husband  ;  and  in  this  the  magistrate  has  no 
discretion.     He  has  no  right  to  say,  that  the  consent  was  voluntary, 
unless  the  husband  and  wife  were  separate,  and  that  they  were  se- 
parate must  appear  on  the  face  of  the  certificate,  and  not  otherwise. 
I  am,  therefore,  of  opinion,  that  the  certificate^of  acknowledgment 
was  defective.     But  it  was  attempted  to  supply  this  defect,  by  the 
parol  evidence  of  the  magistrate,  before  whom  the  acknowledg- 
ment was  made.     This  evidence  was  also  rejected,  and  in  my  opi- 
nion, with  great  propriety.     That  point  was  expressly  decided  in 
the  case  of  Watsotfs  Lessee  v.  Bailey,  1   Bin.  470.     In  that  case, 
the  certificate  of  the  magistrate  was  defective,  and  in  order  to  sup- 
ply the    defect,  parol  evidence  was  offered,  and   refused   by  the 
court.     There  would  be  no  certainty  in  titles,  if  this  kind  of  evi- 
dence were  permitted.     The  deed  in  question,  was  acknowledged 
31st  December,  1802;   and  after  the  lapse  of  twenty  years,  the  ma- 
gistrate is  called  upon  to  declare  what  took  place  at  the  time  of  the 
acknowledgment.     If  it  were  a  new  point,  I  should  say,  that  the 
evidence  ought  not  to  be  admitted.     The  law  directs  the  magistrate 
to  make  his  certificate  in  writing,  and  he  has  made  it.     To  that  the 
world  is  to  look,  and  to  nothing  else.     But  the  point  is   not  new. 
The  decision  in    Watson  fy  Bailey,  has  been  recognised   in    other 
cases.     There  can  be  no  hesitation,  therefore,  in  saying,  that  in  the 
present  instance,  the  parol  evidence  was  inadmissible.     But  there 
was  another  point  of  view  under  which  the  same  deed  was  again 
offered  as  evidence.     It  contains  a  warranty,  by  John  Jourdan  the 
father,  against  himself  and  his  own,  and  his  wife's   heirs,  and  the 
defendant  offered  to  prove,  that  other  lands  descended  in  fee  simple 
from  the  said  John  Jourdan  the  father,  to  his  son  John,  the  plain- 
tiff, more  than  equal  in  value,  to  the  premises  claimed  in  this  suit. 
This  was  a  collateral  warranty,  because  the  land  being  the  estate  of 
the  wife  of  the  warrantor,  it  was  impossible  that  his  child  could  in- 


March,  1823.]  OF  PENNSYLVANIA.  275 

(Jourdati  v.  Jourdan.) 

herit  it  from  him.  A  collateral  warranty,  with  assets,  is  a  bar  to 
the  heir  of  the  warrantor — but  there  is  a  decisive  objection  to  a  bar 
in  this  case.  The  warranty  of  John  Jourdan  the  father,  did  not 
descend  upon  his  son  John,  the  plaintiff,  but  upon  Hugh,  the  de- 
fendant, who  was  the  eldest  son  and  heir  at  common  law.  Our  act 
of  assembly  directing-  the  descent  of  the  real  estates  of  intestates, 
makes  no  mention  of  warranties,  and  in  no  manner  directs  the  mode 
of  their  descent.  That  act  operates  only  on  such  estates  as  the  in* 
testate  had  power  to  dispose  of.  It  has  no  effect  on  estates  tail,  nor 
on  estates  held  in  trust  by  the  intestate.  Such  has  been  the  uni- 
form and  settled  construction.  The  descent  of  warranties  then,  is 
left  to  the  common  law,  and  the  authorities  are  express,  that  a  war* 
ranty  can  descend  on  no  other  than  the  heir  at  common  law ;  al- 
though the  land  of  the  warrantor  may  descend  to  all  the  sons 
equally,  as  is  the  case  with  lands  held  in  Gavelkind,  or  to  the 
youngest  son  only,  where  the  lands  are  held  in  Borough  English. 
In  1  Inst.  12,  it  is  said  by  Lord  Coke,  "  that  a  warranty  shall  not 
go  with  tenements  to  which  it  is  annexed,  to  any  special  heir ;  but 
always  to  the  heir  at  common  law."  And  in  Littleton  Sect.  735, 
the  case  is  put,  of  tenant  in  tail,  seised  of  tenements  in  Borough 
English,  who  discontinues  the  tail  with  warranty,  and  has  issue, 
two  sons,  and  dies  seised  of  other  tenements,  in  the  same  Borough, 
in  fee  simple,  to  the  value,  or  more,  of  the  lands  entailed ;  yet  the 
younger  son  shall  not  be  bound  by  the  warranty  of  his  father,  al- 
though assets  descended  to  him  in  fee  simple  from  his  father,  ac- 
cording to  the  custom,  because  the  warranty  descended  on  the  elder 
brother,  and  not  upon  the  younger.  Then  Littleton  adds,  "and  in 
the  same  manner  it  is  of  collateral  warrantv  made  of  such  tenements ; 
where  the  warranty  descends  upon  the  eldest  son,  it  shall  not  bar 
the  youngest  son."  In  Lilt.  Sect.  73G,  it  is  said,  that  in  case  of 
Gavelkind  lands,  which  are  dividable  between  all  the  sons,  the 
warranty  of  the  father  descends  upon  the  eldest  son  only.  As  to 
the  case  of  Eshelman  v.  Hoke,  decided  by  this  court,  and  report- 
ed in  2  Yeales,  509,  it  is  to  be  remarked,  that  the  only  point  to 
which  the  attention  of  the  court  was  drawn,  was  whether  the  statute 
of  4  <?C  5  Ann.  Ch.  16,  by  which  all  collateral  warranties  are  void, 
unless  made  by  one  who  is  seised  of  an  estate  of  inheritance  in  pos- 
session, had  been  extended  to  Pennsylvania.  The  court  held,  that 
it  had  not  been  extended,  and  therefore,  a  collateral  warranty  with 
assets  was  a  bar,  though  the  warranty  was'not  made  by  a  person  who 
was  seised  of  an  estate  of  inheritance.  Had  the  question  been  pre- 
sented to  the  court,  whether  a  warranty  can  descend  on  any  other 
than  the  heir  at  the  common  law,  I  presume  there  can  be  no  doubt, 
that  it  would  have  been  answered  in  the  negative. 

As  it  is  now  settled,  that  the  statute  of  Jinn,  does  not  extend  to 
this  state,  possibly  the  legislature  may  think  it  prudent  to  make 
some  provision,  whereby  all  injustice  and  inconvenience,  from  the 
effect  of  warranties,  whether  lineal  or  collateral,  may  be  prevented. 
The  subject  certainly  deserves   consideration.     For  although  the 


270 


SUPREME  COURT 


[Philadelphia, 


(Jourdan  v.  Jourdan.) 

warrantee  and  his  heirs  and  assigns,  may  have  remedy  by  action 
on  the  covenant  of  warranty,  in  cases  where  the  land  is  recovered 
from  him  by  one  of  the  children  of  the  warrantor,  yet  the  remedy 
is  uncertain  (by  way  of  damages,)  and  may  be  inadequate.  The 
law  of  warranty  has  fallen  very  much  into  disuse,  and  consequently 
the  knowledge  of  it  is  difficult.  The  remedy  by  voucher  is  un- 
known, (except  in  common  recoveries,)  because  our  actions  for  re- 
covery of  land  have  been  confined  almost  exclusively  to  ejectment, 
in  which  voucher  does  not  lie.  As  for  the  writ  of  warrantia 
chart,  I  do  not  know  that  it  has  ever  been  resorted  to.  And  the 
situation  of  the  warranty  is  embarrassed  by  our  law  of  descent, 
which  divides  the  real  estate  of  the  warrantor  among  all  his  chil- 
dren, while  the  warranty  is  left  to  descend  at  the  common  law,  on 
the  eldest  son  only.  In  such  a  situation  it  is  very  desirable  that 
the  whole  law  warranty  should  be  simplified,  and  adopted  to 
common  understanding,  and  to  our  present  mode  of  conveyancing, 
which  is  altogether  different  from  that  which  prevailed  when  war- 
ranties were  first  introduced. 

The  next  question  which  arose  on  the  trial  of  this  cause  was,  on 
parol  evidence.     The  defendant  offered  to  prove,  that  the  plaintiff's 
mother,  under  whom  he  claims,  after  the  death  of  her  husband, 
John  Jourdan,  delivered  and  ratified  the  deed  of  31st  December, 
1802,  which  had  been  executed  by  her  and  her  husband,  but  had 
no  effect  as  to  her,  because  not  acknowledged  according  to  law. 
This  evidence  the  court  rejected,  and  their  opinion  may  be  account- 
ed for,  by  the  hurry  of  a  jury  trial,  in  which  many  points  were 
to  be  decided  in  a  short  time.      Certain  it  is,  however,  that  the 
evidence  ought  to  have  been  admitted.     The  first  execution  of 
the  deed  by  Mrs.  Jourdan,  was  a  nullity,  because  the  terms  of  the  act 
of  assembly  had  not  been  complied  with,  by  the  magistrate  who 
took  her  acknowledgment.     There  was  no  objection,  therefore,  to 
her  delivering  the   deed,  after  the  death  of  her  husband,  and  such 
delivery  might  be  well  proved  by  parol  evidence.     There  was  er- 
ror, therefore,  in  the  rejection  of  that  evidence.     But  besides  this, 
the  defendant  offered  to  prove  a  variety  of  circumstances,  from 
which  it  might   be  inferred,  (in   case  the   direct  proof  should  fall 
short,)  that  Mrs.  Jourdan  had  delivered  this  deed,  after  the  death 
of  her  husband.     This  evidence  was  also  rejected,  and  in  my  opi- 
nionjimproperly.  It  was  decided  in  Carter's  lessee  v.  Straphan,  Coivp. 
201,' that  the  deed  of  a  married  woman  was  void,  but  might  be 
made  good  by  delivery  only  after  the  death  of  her  husband  ;  also, 
that  delivery  might  be  presumed,  from  circumstances.    Undoubtedly 
the  circumstances  should  be  very  strong,  from  which  a  delivery 
should  be  presumed  ;  but  it  was  proper  they  should  be  heard. 

Last  of  all,  the  defendant  offered  in  evidence,  a  variety  of  other 
matters  mentioned  in  the  bill  of  exceptions,  from  which  it  might 
appear,  that  in  the  life  of  John  Jourdan,  the  father,  and  his  wife, 
and  about  the  time  of  their  executing  the  deed  for  the  lands  in  dis- 
pute, to  Hugh  Jourdan  the  defendant ;  a  family  arrangement  had 


March,  1823.]  OF  PENNSYLVANIA.  277 

(Jourdan  v.  Jourdan.) 

been  made,  to  which  the  father,  mother,  and  all  the  children  were 
parties,  by  which  it  was  agreed,  that  the  land  of  the  mother  should 
go,  after  her  death,  and  her  husband's,  to  the  defendant ;  and  the 
land  of  the  father  to  the  other  children  ;  and  that  in  consequence  of 
this  agreement,  the  defendant  had  been  precluded  from  any  share 
of  his  father's  estate.  This  evidence  was  rejected,  but  I  think  it 
should  have  been  received.  It  is  unnecessary,  and  indeed,  would 
be  improper,  to  give  an  opinion  at  present,  on  the  equity  of  the 
defendant's  case.  Suffice  it  to  say,  that  the  case  appears  to  be  a 
hard  one,  if  he  loses  his  mother's  land,  and  he  ought  to  have  been 
permitted  to  show  all  the  circumstances  of  the  family  agreement, 
which  he  undertook  to  prove.  We  may  easily  conceive,  that  a 
case  might  possibly  have  been  made  out,  in  which  the  equity  would 
have  been  irresistible.  He  may  have  released  to  the  other  mem- 
bers of  the  family,  all  his  right  to  his  father's  land,  on  the  faith  of 
their  consent  to  his  enjoying  the  land  of  his  mother.  All,  how- 
ever, that  need  be  said  at  present,  is,  that  his  evidence  should  have 
been  heard  ;  and  in  that  stage  of  the  cause,  I  am  of  opinion,  that  the 
deed  from  Jourdan,  the  father,  and  his  wife,  to  the  defendant,  might 
have  been  evidence,  as  a  component  part  of  the  family  agreement ; 
though  not  as  a  conveyance  passing  the  estate  of  the  wife. 

I  am  of  opinion,  upon  the  whole,  that  the  judgment  should  be 
reversed,  and  a  venire  de  novo  awarded. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


[Philadelphia,  March  31,  1823  ] 

PEDDLE  against  HOLLINSHEAD. 
COZENS  against  HOLLINSHEAD. 

If  the  sheriff  return  to  a  levari  facias  struck  off  for  a  certain  sum,  and  sheriff  could 
not  make  a  title,  therefore  remains  unsold,  the  plaintiff  may  issue  a  new  execu- 
tion. 

The  privilege  of  a  stay  of  execution  under  the  appraisement  act  of  28th  March,  1820, 
expired  with  that  act,  and  existed  afterwards,  in  relation  to  executions  issued 
while  that  act  was  in  force,  only  as  modified  by  the  act  of  the  27th  March,  1821. 

If  the  legislature  gives  an  indulgence  of  a  stay  of  execution  to  a  debtor,  it  may  af- 
terwards modify  or  withdraw  it. 

An  omission  in  a  levari  facias  of  the  command  to  levy  the  debt,  is  a  clerical  mistake, 
and  may  be  amended  after  error  brought,  by  the  court  above. 

These  were  writs  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  to  remove  the  judgments  and  proceedings 
in  two  suits,  in  which  Hollinshead,  the  defendant  in  error,  was 
plaintiff,  and  the  plaintiffs  in  error  respectively,  were  defendants. 

The  first  of  these  suits  was  a  scire  facias  upon  a  mortgage,  brought 
by  Edmund  J.  Hollinshead,  assignee  of  Joseph  Ball,  for  the  use  of 
Jacob  Ridgtoay  against  Joshua  Peddle,  returnable  to  June  Term, 
1820.      Judgment   was   entered   for  the   plaintiff,  for   2261    dol- 


278  SUPREME  COURT  [Philadelphia, 

(Peddle  v.  Hollinshcad.     Cozens  v.  Hollinshead.) 

lars,  on  the  19th  July,  1820,  upon  which  a  levari  facias  was  is- 
sued, returnable  to  December  Term,  1820.  On  the  22d  Septem- 
ber, 1820,  an  inquisition  was  held  under  this  writ,  by  which  the 
premises  were  valued  at  4500  dollars :  and  the  writ  was  returned 
with  the  following  indorsement :  "  September  27th,  1820,  struck 
off  for  3000  dollars  and  sheriff  could  not  make  title:  therefore  re- 
mains unsold.  Thomas  Elliot,  Deputy  Sheriff."  An  alias  levari 
facias  was  issued  returnable  to  December  Term,  1821,  on  which 
an  inquisition  was  held,  valuing  the  premises  at  3000  dollars  :  and 
the  writ  was  returned  by  the  sheriff  as  follows  :  "  Sold  October 
15th,  1821,  to  Jacob  Ridgivay,  for  1050  dollars,  which  money  the 
sheriff  has  ready,  &c.      Caleb  North." 

The  other  case  was  a  scire  facias  upon  a  mortgage,  brought  by 
Edmund  Hollinshead  against  Archibald  J.  Cozens,  and  Henry  S. 
Cozens,  to  June  Term,  1820,  in  which  the  same  questions  were  in- 
volved, though  the  circumstances  were  somewhat  different.  Judg- 
ment was  entered  for  the  plaintiff  on  the  3d  October,  1820,  for 
3438  dollars,  and  a  levari  facias  was  issued  to  December  Term, 
1820.  On  the  7th  November,  1820,  an  inquisition  took  place  by 
which  the  premises  were  valued  at  10,000  dollars  :  but  the  sale  was 
staid  by  order  of  the  plaintiff's  attorney,  and  on  motion  and  affidavit 
of  plaintiff  this  inquisition  was  set  aside.  An  alias  levari  facias  was 
issued,  returnable  to  March  Term,  1821,  and  on  the  30th  Decem- 
ber, 1820,  another  inquisition  valued  the  premises  at  7500  dollars. 
The  return  to  this  writ,  dated  January  15th,  1821,  was  "struck 
off  for  6050  dollars,  and  sheriff  could  not  make  title,  therefore  re- 
mains unsold."  Signed  Thomas  Elliott,  for  sheriff.  A  phtries 
levari  issued  to  December,  1821,  another  inquisition  was  held  on 
26th  December,  1821,  valuing  the  premises  at  6000  dollars.  On 
which  the  sheriff  returned,  sold  to  Jacob  Ridgway  for  3600  dollars, 
December  26th,  1821. 

Motions  were  made  in  the  court  below  on  behalf  of  the  defen- 
dants respectively,  to  set  aside  the  writs,  the  inquisitions,  and  the 
sales  of  the  property  to  Jacob  Ridgway,  but  were  overruled  by  the 
court. 

The  following  is  an  abstract  of  so  much  of  the  writ  of  levari  fa- 
cias, as  is  material,  issued  in  the  case  of  Hollinshead  v.  Peddle : 
and  the  same  form  was  used  mutatis  mutandis  in  Hollinshead  v. 
Cozens. 

The  commonwealth  of  Pennsylvania  to  the  Sheriff  of  Philadel- 
phia county  greeting : 

We  command  you,  that  without  any  other  writ  from  us  of  the 
lands  and  tenements  which  were  of  Joshua  Peddle,  &c.  to  wit, 
&c.  together  with  the  hereditaments  and  appurtenances  in  your 
bailiwick,  as  well  as  a  certain  debt,  &c.  lawful  money  of  the  Uni- 
ted States,  with  the  lawful  interest  thereof,  from  the,  &c.  as  also, 
&c.  for  costs  which  said,  &c.  with  the  interest  and  costs  aforesaid. 
Edmund  J.  Hollinshead,  &c.  lately  in  our  District  Court,  for  the 


March,  1823.]  OF  PENNSYLVANIA.  279 

(Peddle  v.  Hollinshead.     Cozens  v.  Hollinshead.) 

city  and  county  of  Philadelphia,  before  our  judges  at  Philadelphia, 
in  the,  &c.  by  the  consideration  of  the  same  court  recovered 
against  the  said  premises  above  described,  with  the  appurtenances 
to  be  levied  by  the  default  of  the  said  Joshua,  in  not  paying  the 
said  sum  of,  &c.  according  to  the  form  and  effect  of  an  act  of  as- 
sembly of  the  commonwealth  of  Pennsylvania,  in  such  case  made 
and  provided. 

And  have  you  there  moneys  before  our  judges  at  Philadelphia 
at  our  District  Court  for  the  city  and  county  of  Philadelphia,  on  the 
first  Monday  of  March  next,  to  render  to  the  said  Edmund  for  the 
debt,  interest,  and  costs,  aforesaid. 

And  have  you  then  and  there  this  writ. 
Witness,  &c. 

The  follwing  errors  were  assigned  in  Peddle  v.  Hollinshead: 

1.  That  by  the  sheriff's  return  to  the  first  levari  facias,  it  ap- 
pears that  a  sale  of  the  premises  levied  was  made,  and  that  there- 
fore, the  premises  did  not  "  remain  unsold." 

2.  That  the  premises  levied  on  having  been  sold  under  the  first 
levari,  the  alias  levari  was  irregular  and  void,  and  ought  to  have 
been  set  aside  by  the  court. 

3.  The  alias  was  issued  before  the  expiration  of  one  yearfrom 
the  return  day  of  the  first  levari. 

4.  The  sale  alleged  to  have  been  made  under  the  alias,  was 
void,  the  premises  having  been  already  sold  by  the  sheriff. 

5.  The  sale  was  also  void,  because  it  was  for  less  than  two- 
thirds  of  the  valuation  or  appraisement,  under  Xhelevari  returnable 
to  December,  1820. 

6.  That  no  writ  commanding  or  empowering  the  sheriff'  to  ex- 
pose the  premises  to  sale,  ever  issued  in  this  case  :  the  paper  on 
which  he  acted  is  erroneous  in  recital,  defective  in  authority,  un- 
intelligible and  absurd. 

The  same  errors  in  substance  were  assigned  in  Cozens  v.  Hol- 
linshead, the  only  difference  being  that  in  Cozens  v.  Hollinshead,  the 
first  levari  and  inquisition  were  set  aside,  and  the  subsequent  pro- 
ceedings were  on  an  alias  and  pluries. 

Raivle,  for  the  plaintiff"  in  error.(a) 

1.  2.  From  the  return  of  the  sheriff  to  the  levari,  it  appears 
that  a  sale  was  made,  and  therefore  the  premises  could  not  remain 
unsold.  The  return  of  "  struck  off,"  is  a  return  of  a  sale :  the  pur- 
chaser was  bound,  and  both  the  plaintiff  and  defendant  had  an 
interest  in  the  sale.  The  subsequent  part  of  the  return  also  shows 
it.  It  is  that  "  the  sheriff1  could  not  make  a  title."  It  is  not  in  the 
sheriff's  power  to  decide  that  it  is  no  sale,  and  that  there  is  no 
title  in  the  defendant.  He  ought  not  to  be  permitted  to  cast  a  shade 
on  the  title.     This  return  does  not  state  that  the  purchaser  refused 


(a)  The  argument  was  applied  to  the  case  of  Peddle  v.  Hollinshead,  but  the  same 
principles  are  involved  in  both  cases. 


280 


SUPREME  COURT 


[Philadelphia, 


(Peddle  v.  Hollinshead.     Cozens  v.  Hollinshead.) 

to  take  the  premises,  or  objected  to  the  title.  Indeed,  whether 
there  was  any  title  in  the  defendant  or  not,  the  purchaser  at 
sheriff's  sale  is  bound  by  his  contract.  Smith  v.  Painter,  5  Serg. 
fy  Rawle,  223.  If  it  was  a  return  of  sale  the  exigence  of  the  first 
writ  was  completely  complied  with,  and  the  alias  levari  facias 
and  sale  thereon  were  irregular  and  void,  and  the  court  below 
erred  in  refusing  to  set  them  aside. 

3.  and  4.    By  the  act  of  assembly  of  the  28th  March,  1820,  sect. 
1,  2,  in  case  lands  levied  upon  by  a  levari  facias,  cannot,  be  sold 
at  public  vendue,  for  two-thirds  or  more  of  the  appraisement  made 
by  the  inquisition,  the  sheriff  shall  not  make  sale  of  the  premises, 
but  shall  return  the  same,  and  all  further  proceedings,  for  the  sale 
thereof  shall  be  staid  for  one  year  from  the  return  day  of  the  levari 
facias.     Pamph.   Laws,  188.     The    execution   was     issued  while 
this  law  was  in  force,  returnable  to  December  Term,  1820,  an  in- 
quisition was  held,  and  the  property  appraised  at  4500   dollars. 
The  property  was  offered  for  sale,  and  no  sale,  as  is  alleged,  was 
completed.     Under  this  act  no  further  proceedings  could  be  had 
till  after  December,  1821,  one  year  from  the  return  day  of  the  le- 
vari facias,  and,  therefore,  the  alias  levari  facias  was  irregular. 
Besides,  the  property  did  not  sell  on  the  alias  for  two-thirds  of  the 
appraisement.     But  it  is  said,  that  the  act  of  1820  had  expired,  and 
that  the  second  proviso  of  the  act  of  the  27th  March,  1821,  quali- 
fies the  privilege  of  the  defendant,  and  has  not  been  complied  with. 
It  enacts,  that  in  every  case  where  the  real  estate  has  been  or 
hereafter  shall  be  taken  in  execution,  and  appraised,  before  or  after 
the  passing  of  this  act,  the  defendant  shall  not  have  the  benefits  of 
the  same,  unless  he  shall  on  or  before  the  first  day  of  August  next, 
and  every  six  months  thereafter  pay  to  the  plaintiff,  the  amount  of 
interest  due  on  such  judgment.     But  in  the  first  place  this  proviso 
applies  only  to  the  act  of  1821  :  the  words  are,  "  shall  not  have 
the  benefits  of  the  sa?ne,>,  which  refer  to  "  this  act."     In  the  next 
place  it  ought  not  to  be  construed  to  extend  to  a  case  in  which 
executions  had  issued  under  the  former  act.     By  the  act  of  1820, 
the  defendant  had  acquired  a  vested  right  to  a  stay  of  proceedings 
for  one  year  from  the  return  day  of  the  levari  facias  ;   and  such 
right  acquired  while  an  act  was  in  force,  remains  after  the  act  has 
been  repealed  or  is  expired.     Couch  v.    Jeffries,   4  Burr.  2460. 
Bedford  v.  Shilling,  4  Serg.  Sf  Rawle,  401.     Fletcher  v.    Peck,  6 
Crunch.  88.     Colder  v.  Bull,  3  Dull.  396.     Even  if  the  legislature, 
by  the  proviso  of  the  act  of  March  27th,  1821,  intended  to  interfere 
with  cases  completed  under  the  provisions  of  the  act  of  1820,  in 
which  the  party  had  a  vested  right,  they  could  not  deprive  him  of 
it.     The  court  will  intend  that  the  legislature  did  not  mean  to  af- 
fect a  vested  right,  or  to  have  a  retrospective  effect,  but  contem- 
plated only  proceedings  de  novo. 

5.  The  sale  under  the  alias  was  void,  because  it  was  for  less  than 
two-thirds  of  the  appraisement  on  the  levari.     The   second  valua- 


March,  1823.]  OF  PENNSYLVANIA.  281 

(Peddle  v.  Hollinshead.    Cozens  v.  Hollinshead.) 

tion  was  a  nullity,  as  the  first  remained  not  set  aside  or  annulled  by 
the  court. 

[The  court  intimated  that  the  decision  of  the  court  below,  being 
matter  of  discretion,  was  not  the  subject  of  a  writ  of  error.] 

Authorities  may  be  shown  in  which  the  court  entered  into  con- 
siderations of  this  tort.  In  Pearson  v.  Morrison,  2  Serg.  fy  Rawle, 
20,  this  court  on  a  writ  of  error  considered  the  propriety  of  the 
court's  proceeding  below  in  setting  aside  a  levy,  execution,  and 
sale,  on  motion  of  the  plaintiff's  attorney,  though  it  was  said  by  the 
court,  that  the  Court  of  Common  Pleas  possessed  discretionary 
power  over  its  own  process.  He  also  cited  Clark  v.  Baker,  3  Serg. 
#  Rawle,  470.  Duncan  v.  Robeson,  2  Yeates,  454.  Burd  v.  Duns- 
dale,  2  Binn.  92.  This  was  not  a  case  of  pure  discretion  in  the 
court  below :  for  the  court  were  bound  by  the  act  of  assembly,  and 
erred  in  giving  a  wrong  construction  to  it. 

6.  The  writ  of  levari  facias  is  insensible  and  inoperative.  It 
does  not  command  the  sheriff  to  levy.  Unless  it  can  be  amended 
by  the  praecipe,  it  is  altogether  erroneous. 

M'llvaine,  contra. 

1.  and  2.  It  is  not  sufficient  to  constitute  a  sale  that  the  proper- 
ty should  be  struck  off:  all  the  conditions  of  sale  must  be  complied 
with  before  a  sale  can  be  said  to  be  made.  The  sheriff's  return  here 
is  in  substance  that  no  sale  was  made.  The  act  of  1705,  sect.  8 
(Purd.  Dig.  198)  directs  the  sheriff  in  case  the  lands  cannot  be 
sold  on  a  levari  facias,  to  return  that  he  exposed  them  to  sale,  and 
that  they  remained  unsold  for  want  of  buyers  :  but  this  is  put  only 
by  way  of  example,  and  he  may  make  a  special  return  according  to 
the  facts.  In  Zantzinger  v.  Pole,  1  Dall.  419,  the  court  say,  that 
if  the  property  is  not  paid  for  after  a  sale,  the  sheriff's  return 
should  be  that  "  the  premises  were  knocked  down  to  A.  B.  for  so 
much,  and  that  the  said  A.  B.  has  not  paid  the  purchase  money, 
and  that  therefore  the  premises  remain  unsold."  The  return  of  the 
sheriff  must  show  obedience  to  the  writ  or  a  good  excuse.  6  Com. 
Dig.  228,  Return  D.  1.  The  sheriff  cannot  be  compelled  to  alter 
his  return  in  matter  of  fact.  Vastine  v.  Fury,  2  Serg.  fy  Rawle,  430. 
All  the  court  can  compel  the  sheriff  to  do  is  to  make  a  certain  return. 
This  return  is  sufficiently  certain  to  give  the  party  a  remedy  against 
the  sheriff.  The  substance  of  it  is  that  the  property  remained  un- 
sold :  the  reason  he  could  not  make  a  title  is  entirely  with  the 
sheriff.  But  if  the  sheriff  found  that  he  could  not  make  a  title  it  was 
his  duty  to  vacate  the  sale. 

3.  and  4.  The  case  falls  completely  within  the  proviso  of  the  act 
of  1821  :  the  interest  was  not  paid,  as  is  thereby  required,  and 
therefore  the  defendant  is  debarred  from  its  benefits.  It  is  argued 
that  the  legislature  did  not  mean  to  act  retrospectively,  but  the  lan- 
guage of  the  act  is  explicit  on  that  subject.  It  embraces  "  every 
case  where  real  estate  has  been,  or  hereafter  shall  be  taken  in  exe- 
vol.  ix.  2  N 


282  SUPREME  COURT  [Philadelphia, 

(Peddle  v.  Hollinshead.    Cozens  v.  Hollinshead.) 

cution  or  appraised  before  or  after  the  passing  of  that  act."  It  is 
also  objected  that  the  act  of  1820  conferred  a  vested  right,  which 
could  not  be  defeated  by  the  extirpation  of  that  act,  or  the  modifica- 
tion of  the  act  of  1821.  But  the  act  of  1821  merely  restored  to  the 
creditor  a  right  which  had  been  suspended  by  the  former  act.  If 
injustice  was  done  by  the  legislature,  it  was  to  the  creditor  in  the 
first  instance,  and  they  afterwards  removed  the  barrier  to  the  pro- 
secution of  his  rights.  The  legislature,  however,  has  always  exer- 
cised a  power  over  process-  Besides  the  act  of  1820  did  not  exist 
after  the  27th  March,  1821,  except  as  modified  by  it :  and  acts  begun 
under  a  law  which  is  expired  or  repealed  cannot  be  continued. 
3  Sm.  Laws,  522  note,  4  Yeates,  394. 

5.  In  the  court  below,  on  the  question  of  the  validity  of  the  sale 
in  October,  1821,  much  evidence  was  adduced  of  which  the  court 
here  is  not  informed  by  the  record.  It  was  decided  on  motion,  and 
it  is  a  matter  for  the  sound  discretion  of  the  court  below,  whether 
to  set  aside  a  sale  or  not.  It  cannot  be  inquired  into  on  a  writ  of 
error.  This  court  cannot  inquire  on  error  into  the  abuse  of  process 
or  misfeasance  of  the  sheriff  acting  in  obedience  to  the  writs  issued 
from  another  court.  If  the  sheriff  has  sold  when  the  law  forbade 
it,  which  was  by  no  means  the  case,  he  is  responsible  for  it :  but 
this  court  cannot  inquire  into  the  sale  if  the  writs  be  regular. 

6.  As  to  the  form  of  the  levari  facias,  there  was  an  error  in 
leaving  out  the  words  "you  cause  to  be  levied,"  which  the  court 
will  amend  if  necessary,  though  it  may  well  be  contended  that 
enough  appears  from  the  whole  writ  to  show  a  command  to  the 
sheriff.  If  it  be  a  defect  it  is  cured  by  the  statutes  of  joefail.  The 
praecipe  orders  the  prothonotary  to  issue  a  levari  facias :  and  if  he 
has  committed  a  misprision,  the  court  will  disregard  it.  Amend- 
ments may  be  made  after  as  well  as  before  writs  of  error.  4  Yeates, 
185,  479,  205.     4  Dall.  267.     1  Dull.  197.     1  Binn.  486. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  The  points  in  both  cases  are  the  same,  and  have 
been  so  considered  in  the  argument.  I  am  decidedly  of  opinion, 
that  the  onl)  questions  which  can  be  considered  by  this  court,  on 
these  writs  of  error,  and  on  the  specific  errors  assigned  are,  whe- 
ther the  writs  of  levari  facias  on  which  the  sales  were  made, 
were  warranted  by  existing  laws,  and  whether  this  was  in  fact  a 
command  to  sell,  or  that  omission  can  be  taken  advantage  of  in  er- 
ror, and  if  it  can,  whether  the  writ  can  be  amended  by  this  court. 
The  material  question  depends  on  the  construction  and  operation  of 
the  two  acts  of  assembly,  one  of  the  28th  March,  1820,  7  Biorerfs 
St.  L.  335.,  and  the  act  of  27th  March,  1821,  page  423.  The  first 
directs,  \\  on  execution,  appraisement  of  land  shall  be  had,  and  if 
it  will  not  sell  for  two-thirds  of  its  appraised  value,  sheriff  shall  so 
return,  and  further  proceedings  be  staid  for  one  year."  The  act 
to  continue  in  force  one  year  and  no  longer.     The  second  continues 


March,  1823.]  OF  PENNSYLVANIA.  283 

(Peddle  v.  Hollinsliead.    Cozens  v.  Hollinshead.) 

the  first  four  sections  of  the  act  of  1820,  for  one  year,  provided  "  that 
in  every  case,  where  real  or  personal  estate  has  been,  or  hereafter 
shall  be,  taken  in  execution  or  appraised,  before  or  after  the  passing 
the  act,  the  defendant  shall  not  have  the  benefit  of  the  same,  unless 
he  shall,  on  or  before  the  first  day  of  Jlugust  next,  and  every  six 
months  thereafter,   pay  to  the  plaintiff  or  plaintiffs,  his  or  their 
agent  or  attorney  the  amount  of  interest,  due  on  such  judgment  or 
judgments,"  and  the  argument  is,  that  inasmuch  as  there  had  been 
an  attempt  to  sell,  and  a  return  of  unsold  for  want  of  buyers,  while 
the  act  of  1820  was  in  full  force,  and  as  that  act  declared,  that  when 
the  property  could   not   be  sold    for    two-thirds   of  its  appraised 
value,  the  proceeding  shall  be  staid  for  one  year  from  and  after  the 
return  of  the  writ,  that  the  act  of  1820,  as  to  such  cases,  was  ne- 
cessarily extended  to  one  year  after  the  return  of  the  writ.     That 
the  right  to  a  stay  of  sale  was  a  vested  right,  not  affected  by  the 
expiration  of  the  law,  and  that  the   legislature   could   not  add  the 
qualification  of  payment  half  yearly,  to   an  indulgence  which  had 
been  previously  granted  without  any  condition.     This  indulgence 
cannot  be  considered  as  a  vested  right,  which  neither  repeal  nor  ex- 
piration of  the  law  could   affect.     For  certainly,  if  the  legislature 
could  constitutionally  grant  the  indulgence  to  the  debtor,  and  sus- 
pend the   creditor's  right   of  recovery,  they  could   restore  it  by  a 
subsequent  law,  and  take  off  the  suspension.    It  was  a  favour  grant- 
ed to  the  debtor,  at  the  expense  of  the  creditor ;  a  favour  which, 
if  the  legislature  could  confer,  they  could  withdraw.     The  act  of 
1820,  standing  alone,  without  any  continuance  or  prolongation  by 
the  act  of  1821,  expired  by  its  express  limitation  in  one  year  after 
its  passage,  and  would  have  left  the  law  and  the  courts  of  justice 
open  to  the  creditor,  as  much  as  if  it  had  never  passed.     It  placed 
the  creditor  and  debtor  in  statu  quo. 

If  a  temporary  statute  expires,  all  that  has  been  done  under  it 
ceases  with  it ;  unless  a  perfect  and  complete  right  is  acquired  or 
title  vested  under  it.  An  offence  against  a  temporary  statute  can- 
not be  punished  after  the  expiration  of  the  act,  unless  particular 
provision  is  made  for  that  purpose.  7  JVJieat.  551 ;  nor  any  seizure 
made  after  its  expiration,  though  the  act  giving  the  right  had  oc- 
curred before.  6  Cranch.  208.  Nor  can  a  sentence  of  condemna- 
tion be  affirmed  if  the  law  has  expired,  although  sentence  of  con- 
demnation and  money  paid  over  before  the  expiration  of  the  law. 
So  where  privileges  attached  by  proceedings  actually  commenced, 
and  the  law  is  afterwards  repealed,  as  under  insolvent  debtor's  act, 
after  the  prisoner  complied  with  every  regulation,  and  proceedings 
continued  without  his  consent  to  a  day  subsequent  to  the  repeal  of 
the  act,  he  cannot  be  discharged,  although  he  had  actually  assigned 
his  property.     Miller's  Case,  1  W.  El.  451.  3  Burr.  1456. 

There  is  no  difference,  in  this  respect,  between  a  statute  expiring 
by  its  own  limitation,  or  repealed.  The  act  of  182  \,  was  a  substi- 
tute for  the  act  of  1820.    The  first  act  was  probationary,  or  experi- 


% 


284 


SUPREME  COURT 


[Philadelphia, 


(  Peddle  v.  Hollinshcad.    Cozens  r.  Hollinshead.) 

mental,  to  see  how  the  indulgence  would  work  for  one  year.  The 
latter  act  revising  the  whole  subject  matter  of  the  former,  and  indi- 
rectly intended  as  a  substitute  for  the  former  one,  though  the  for- 
mer one  had  been  not  temporary,  must,  in  presumption  of  law,  as 
well  as  reason  and  common  sense,  operate  to  repeal  the  former. 
Bartlett  v.  King,  12  Mass.  545.  Another  act  passed  the  2d  April, 
1822,  7  Biorenh  St.  L.  568,  continues  in  form  the  act  of  1821, 
for  the  appraisement  of  estates  taken  in  execution,  until  the  1st 
November,  1822,  thus  giving  the  sense  of  the  legislature,  that  this 
act  was  the  only  one  in  force.  On  the  expiration,  the  legislature 
thought  it  would  be  unjust  to  deprive  the  creditor  of  his  legal  re- 
medies, for  the  recovery  of  his  debt,  unless  the  debtor  paid  him  at 
least  the  interest,  and  it  never  could  be  the  intention  of  the  legisla- 
ture, to  postpone  the  vigilant  creditor,  merely  because  he  had  made 
an  unsuccessful  attempt  to  sell  for  two-thirds  the  amount  of  ap- 
praised value. 

As  to  the  exception,  that  no  further  execution  could  issue,  the 
sheriff  having  returned  a  sale ;  the  sheriff  did  return  an  attempt  to 
sell,  knocking  down  of  the  premises,  but  this  had  been  ineffectual, 
because  he  could  not  make  a  title  therefor,  and  he,  therefore,  re- 
turned it  unsold  for  the  want  of  buyers.     This  might  be  a  safe  return 
by  the  sheriff  in  point  of  fact,  for  it  was  not  a  fair  sale,  if  it  was  re- 
presented that  the  title  was  good,  and  unknown  to  every  one  there 
was  a  latent  defect  of  title ;  as  if  debtor  had  conveyed  before  mort- 
gage or  judgment,  then  it  would  be  a  just  return.     But  he  did  re- 
turn it  unsold  for  want  of  buyers.     He  might  be  liable  for  his  false 
return,  but  still  the  plaintiff  could  issue  a  new  execution,  leaving 
all  who  might  suppose  they  were  aggrieved  by  this  return,  to  their 
action  against  the  sheriff.     The  sheriff  not  having  received  the  mo- 
ney on  an  effectual  sale,  there  could  be  nothing  to  prevent  plaintiff' 
from  going  on  to  complete  his  execution.     If  the  sheriff  had  return- 
ed that  he  had  sold,  but  could  not  make  a  title,  this  might  have  been 
a  sufficient  return,  but  returning  it  unsold,  this  enabled  the  plaintiff 
to  take  out  a  new  writ.  See  1  Peters,  245.     If  the  money  was  not 
paid,  he  must  return  it  unsold  for  want  of  buyers.     This  return 
certainly  showed  the  exigency  of  the  writ  had  not  been  complied 
with.     The  plaintiff  had  not  the  fruit  and  end  of  his  execution,  and 
was  entitled  to  a  new  one.     If  the  purchaser  did  not  comply  with 
the  terms  of  the  sale,  it  was  the  same  thing  as  if  it  had  not  been 
struck  off,  the  remedies  of  all  parties  against  the  bidder  not  comply- 
ing being  open  to  them.     The  omission  in  the  writ,  directing  the 
sheriff  to  levy  the  debt,  is  a  mere  clerical  mistake,  which  the  pre- 
cipe would  cure.     The  writ  commands  him  to  have  the   money, 
but  does  not,  as  it  ought,  command  it  to   be  levied   off  the   mort- 
gaged premises.     The  clerk  should  alter  the  present  form  of  exe- 
cution, by  the  form  used  in  the  Supreme  Court. 

Erroneous  teste  of fieri  facias ,  the  execution  is  amendable.  Baker 
r.  Smith,  4  Yeates,  18&.  fierthon  v.  Keely,  4  Yeates,  205.    So  teste 


March,  1823.]  OF  PENNSYLVANIA.  285 

(Peddle  v.  Hollinshead.     Cozens  ».  Hollinshead.) 

and  return  of  venditioni  exponas.  Shoemaker  v.  Knorr,  1  Dall. 
197,  and  the  amendments  have  been  made  in  the  court  of  errors,  as 
in  Black.~v.  Wistar,  4  Dall.  267,  where  judgment  and  fieri  facias 
differed,  this  was  a  mistake  of  the  clerk,  not  of  the  party,  and  may 
be  amended  after  error  brought  by  the  preecipe.  And  the  court 
will  issue  a  certiorari  to  bring  up  the  prcecipe  to  amend  by.  In  Pre- 
vost  v.  Nichols,  4  Yeates,  483,  the  power  of  the  court  above  to 
amend  was  asserted  and  exercised.  In  matters  arising  from  the 
mere  carelessness  of  the  clerk  in  process,  it  is  to  be  observed,  that 
those  things  which  are  amendable  before  the  writ  of  error  brought, 
are  amendable  after  the  writ  of  error  brought,  and  if  the  Inferior 
Court  doth  not  amend  them,  the  Supreme  Court  may  amend  them  ; 
and  this  has  been  allowed  in  times  when  courts  were  not  so  liberal 
in  granting  amendments  as  at  the  present  day.  Blackmore's  Case, 
8  Co.  162.  a.  But  the  defendant  in  error  must  pay  the  costs  of 
amendment,  Gilb.  H.  C.  P.  167,  182,  and  executions. 

Judgment  affirmed. 


[Philadelphia,  March  31,  1893.] 

INGRAHAM  against  BOCKIUS  and  another. 

IN  ERROR. 

If  a  servant,  in  the  course  of  delivering  out  goods  to  customers,  make  memoranda, 
and  the  same  night,  or  next  day,  entries  are  made  by  the  master,  in  books,  from 
these  memoranda,  such  books  are  books  of  original  entries,  and  are  admissible, 
accompanied  with  the  master's  oath,  as  evidence  to  charge  a  customer. 

Error  to  the  Common  Pleas  of  Philadelphia  County. 

This  suit  was  brought  by  Peter  Bockius  and  Rudolph  Bockius, 
plaintiffs  below,  against  Francis  Ingraham,  to  recover  the  value  of 
a  certain  quantity  of  meat,  alleged  to  have  been  sold  and  delivered 
to  the  defendant  by  the  plaintiff's.  On  the  trial,  the  plaintiffs  pro- 
duced John  Vasey,  a  witness,  who  swore,  "  that  he  was  employed 
by  the  plaintiffs  during  the  years  1816,  1817,  1818,  1819,  to  do 
business  as  a  butcher  for  them,  according  to  the  course  of  their 
business,  that  of  butchers,  which  was  to  kill  one  day,  and  carry  the 
meat  round  the  next  day  to  customers,  who  lived  at  some  distance 
from  the  plaintiffs'  residence.  That  the  defendant  was  a  customer, 
and  took  meat.  That  the  said  John  Vasey  kept  memoranda  with  a 
pencil,  for  his  own  use,  of  the  meat  he  sold,  and  of  the  persons  he 
sold  to ;  two  books,  in  which  the  same  were  made,  being  produced, 
and  part  of  another ;  but  that  the  same  were  in  general,  destroyed, 
those  being  the  only  memoranda  to  be  found — and  the  same  night, 
or  the  next  day,  the  same  were  entered  in  their  books,  and  that  he, 
Vasey,  stood  by,  and  the  same  were  called  over  twice  to  see  if  they 
were  correct."  The  plaintiffs  then  offered  the  entries  in  the  plaintiffs, 


28(5 


SUPREME  COURT 


[Philadelphia, 


(Ingraham  v.  Bockius  and  another.) 

books,  (made  from  the  said  memoranda,)  as  evidence  of  the  sale, 
and  delivery  of  the  meat  to  the  defendant,  the  plaintiffs  having-  pre- 
viously sworn,  that  the  books  into  which  the  memoranda  were  so  as 
aforesaid  copied,  were  their  books  of  original  entry,  and  the  en- 
tries made  in  their  hand  writing-.  The  defendant  objected  to  the 
reading-  of  the  enteries  in  the  said  last  mentioned  books,  contending-, 
that  the  same  were  not  original  entries,  nor  the  said  books,  books 
of  original  entry,  and  prayed  the  court  not  to  admit  the  same  to  be 
read,  as  evidence  to  the  jury,  to  charge  the  defendant.  The  court, 
however,  did  permit  the  same  to  be  read  to  the  jury.  The  defen- 
dant then  objected,  that  the  said  last  mentioned  books  and  entries, 
were  not  evidence  of  the  sale  and  delivery  of  goods  to  the  defen- 
dant, and  requested  the  court  to  charge  the  jury,  that  the  same  were 
not  evidence  of  the  sale  and  delivery  of  goods  to  the  defendant;  but 
the  court  charged  the  jury,  that  the  same  were  evidence  of  the  sale 
and  delivery  of  goods  by  the  plaintiffs  to  the  defendant.  To  the 
admission  of  which  said  evidence  and  charge,  the  defendant  ex- 
cepted. 

The  plaintiff  in  error  assigned  the  following  errors  : 
1st.  That  the  court  below  erred  in  permitting  the  plaintiffs  to  read, 
as  evidence,  to  the  jury,  the  entries  in  the  books  of  the  said  plain- 
tiffs, copied  from  the  memoranda,  made  by  John  Vasey. 

2d.  That  the  court  below  erred  in  charging  the  jury,  that  the  said 
entries  so  copied  into  the  said  books,  were  evidence  of  goods  sold 
and  delivered  to  the  defendant  by  the  plaintiffs. 
Ingraham,  for  the  plaintiff  in  error,  contended, 
1st.  That  the  books  of  the  plaintiffs,  received  in  evidence  by  the 
court  below,  were  erroneously  admitted,  to  prove  goods  sold  and  de- 
livered or  labour  done.     The  books  of  a   plaintiff  are  admissible, 
when  supported  by  the  oath  of  the  party  keeping-  them  ;  but  original 
books  of  entry  only  fall  within  the  rule.     The  book,  in  this  case, 
was  not  a  book  of  original  entries,  but  only  a  copy  from  the  book 
of  original  entries,  which  consisted  of   the  memoranda  made   by 
Vasey.     They  ought  to  have  been  produced,  and  were  the  only  re- 
gular proof.     In  Ogden  v.  Miller's  Executor,  1  Browne,  147,  en- 
tries on  a  slate  afterwards  transferred  to  a  book,  were  held  not  to 
be  evidence  of  a  tavern  account.     In  Sterrel  v.  Bull,  1  Binn.  235, 
this  court  say,  that  where  clerks  are  employed,  and  the  entries  are 
made  by  them,  there  is  no  reason  for  allowing  the  book  to  be  given 
in  evidence  as  a  book  of  original  entries.     But  if  a  transcript  from 
the  entries  made  by  a  clerk  be  evidence,  this  salutary  principle  may 
easily  be  evaded.  In  Rodman  v.  Hoops'1  Executors,  1  Dall.  85,  the 
court  directed  the  jury,  that  they  should  pay  no  regard  to  a  ledger, 
allowed  to  be  read  in  evidence,  if  they  thought  it  a  transcript,  from 
a  waste  book.     In  Vance  \.  Faris,  2  Dall.  217,  entries  made  some 
months  after  the  transactions  between  the  parties,  were  rejected.    He 
also  cited  Rogers  v.  Old,  5  Serg.  <§•  Raiule,  404. 

2d.  The  charge  of  the  court  was,  that  the  books  were  evidence 


March,  1823.]  OF  PENNSYLVANIA.  287 

(Ingraham  v.  Bockiua  and  another.) 

of  the  sale  and  delivery,  which  can  only  mean,  that  they  were 
conclusive  evidence.  Whereas,  books  of  original  entry  are  no  more 
than  prima  facie  evidence. 

Castor  ^f  Condie,  contra. 

1st.  The  evidence  given  by  the  plaintiffs  was  very  strong  :  coun- 
try butchers  delivered  out  meat  to  their  servant,  who  distributed  it 
to  their  customers,  and  the  same  night,  or  next  day,  the  entries  were 
made.  It  is  quite  as  strong  as  the  case  of  Price  v.  The  Earl  of 
Torrington,  Sulk.  285,  where  the  plaintiff's  draymen  gave  him 
an  account  of  beer  delivered  out,-  which  he  set  down  in  a  book,  to 
which  the  draymen  set  their  hands,  and  after  the  death  of  the  dray- 
men, their  hand-writing  was  proved,  and  held  sufficient.  To  con- 
stitute it  a  book  of  original  entries,  it  is  enough  that  the  entries  were 
made  at,  or  near  the  time  of  the  transaction.  Curren  v.  Craw- 
ford, 4  Serg.  <$r  Raiole,  3. 

2d.  The  court  did  not  charge,  that  the  entries  were  conclusive, 
only  that  they  were  evidence. 

Reply.  Earl  Torrington 's  case  depended  on  the  signature  of  the 
draymen  who  were  dead.  But  in  this  case,  what  the  servant  told 
the  master,  was  only  hearsay  evidence. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  Nothing  appears  to  show  that  the  book  admitted  to 
go  to  the  jury,  was  not  a  book  of  original  entries.  Vasey,  the 
witness  acted  in  the  capacity  of  a  servant,  to  deliver  meat  to  the 
customers,  and  not  in  that  of  a  book-keeper  ;  and  his  memoranda, 
made  with  a  pencil,  he  swore  were  only  for  his  own  use,  to  enable 
him  to  render  a  true  account  to  the  plaintiffs,  of  the  meat  sold.  His 
memoranda,  therefore,  are  not  to  be  viewed  in  the  light  of  the  ori- 
ginal entries  of  the  plaintiffs,  who  did  not  direct  them  to  be  made  ; 
or  at  least,  for  any  other  purpose  than  to  obtain  an  accurate  account 
of  the  sales  to  his  customers.  It  is  clear,  these  memoranda  were 
not  considered  as  evidence,  to  charge  the  customers,  either  by  the 
plaintiffs,  or  Vasey ;  or  as  any  thing  else  than  brief  notes  of  the 
transactions  occurring  in  the  course  of  the  business,  and  made  at 
the  time,  with  a  view  to  be  used  when  the  regular  entries  came  to 
be  made  in  the  books.  These  entries  the  witness  swore  were  made 
on  the  night  of  the  day  of  delivery,  or  the  next  morning,  while  the 
witness  stood  by,  and  the  memoranda  were  called  over  twice,  to 
see  whether  every  thing  was  right.  This  case  is  very  like  Curren 
v.  Cravford,  4  -Serg.  8f  Rawle,  3,  except  that  it  is  stronger  ;  the 
person  who  delivered  the  articles  charged,  being  produced,  and  the 
original  memoranda  either  produced,  or  their  loss  proved.  What 
more  could  possibly  be  done  ?  The  entries  were  made  in  a  course 
of  dealing  between  the  parties,  at  or  about  the  time  of  the  respective 
transactions  ;  and  in  the  usual  course  of  the  plaintiff's  business  :  this 
was,  in  all  reason,  sufficient  to  entitle  them  to  be  read. 

Judgment  affirmed. 


288  SUPREME  COURT  [Philadelphia, 


[Philadelphia,  March,  1823.] 

THURSTON  and  others  against  FISHER,  Administrator  of 

DAWES. 

DEMURRER. 

The  residence  of  a  plaintiff  within  the  State  of  New-York,  at  the  time  when  the  debt 
accrued,  and  since,  does  not  bring  him  within  the  proviso  of  the  act  of  limita- 
tions in  favour  of  persons  beyond  seas. 

A  party  entitled  to  the  benefit  of  the  proviso,  loses  his  privilege  from  the  time  he 
comes  into  the  State:  and  a  replication  to  a  plea  of  the  act  of  limitations,  not 
stating  that  the  plaintiff  had  not  been  in  the  Slate  within  the  time  allowed  by  the 
act,  is  bad  on  demurrer. 

Declaration  in  assumpsit  on  a  policy  of  insurance,  to  which  the 
defendant  pleaded  non  assumpsit  infra  sex  annos.  The  plaintiffs 
replied,  that  at  the  time  when  the  cause  of  action  mentioned  in 
the  declaration  accrued,  the  plaintiffs,  and  each  of  them,  were 
resident  out  of  the  State  of  Pennsylvania,  in  the  State  of  New-  York, 
and  always  since,  have  continued  to  reside  there,  at  all  times,  and 
at  present,  and  that  neither  of  them  ever  returned  to,  or  resided  in 
Pennsylvania.     General  demurrer. 

Wharton  in  support  of  the  demurrer,  made  two  points. 

1st.  That  the  residence  of  the  plaintiffs  in  the  State  of Neio-York 
does  not  bring  them  within  the  saying  of  the  act  of  limitations. 

2d.  Supposing,  in  general,  the  law  to  be  in  their  favour  on  that 
point,  yet  the  replication  does  not  set  forth  the  necessary  facts. 

1st.  By  the  act  for  the  limitation  of  actions,  passed  the  27th  of 
March,  1813,  Sect.  1,  Purd.  Dig.  419,  all  actions  upon  the  case 
shall  be  brought  within  six  years  after  the  cause  of  such  action,  and 
not  after.  By  the  5th  section,  it  is  provided,  that  if  any  person, 
entitled  to  such  action,  at  the  time  of  any  cause  of  such  action  given 
or  accrued,  fallen,  or  come,  shall  be  beyond  the  sea,  then  such  per- 
son may  bring  his  action,  so  as  he  brings  the  same  within  the  time 
before  limited,  after  returning  into  this  province.  This  statute  be- 
ing beneficial,  the  proviso  is  to  be  strictly  construed.  It  gives  an 
advantage  to  foreigners  at  the  expense  of  our  own  citizens.  If  the 
phrase  "  beyond  sea,"  is  literally  construed,  then  New-York,  where 
the  plaintiff  resided,  is  not  beyond  sea,  though  it  may  be  reached 
by  sea.  If  this,  however,  were  sufficient,  New-Jersey  would  also 
be  beyond  sea.  But  the  intent  of  the  legislature  was,  to  protect 
those  who  were  absent  in  a  foreign  country,  and  are  thus  disabled 
from  conveniently  bringing  suit.  The  saving  clause  does  not  apply 
to  citizens  of  other  states,  who  are  under  a  common  government, 
and  who,  by  the  constitution  of  the  United  States,  are  entitled  to 
the  privileges  of  citizens  in  the  several  states.  Art.  4,  sect.  2.  The 
authorities  are  with  the  defendants,  as  well  as  the  reason  that  go- 
verned the  legislature.  In  King  v.  Watker,  2  Bl.  Rep.  286, 
Scotland  was  held  not  to  be  beyond  sea.     This  is  the  only  English 


March,  1822.]  OF  PENNSYLVANIA.  289 

(Thurston  and  others  v.  Fisher,  Administrator  of  Dawes.) 

case  to  be  found  on  the  point.  In  this  country  the  question  has 
frequently  occurred.  In  Gustine  v.  Brattle,  Kirby,  299,  absence  at 
Halifax,  was  held  not  to  be  over  sea,  which  was  the  expression  in 
the  Connecticut  statute.  In  Ward  v.  Hallam,  2  Dall.  217, 1  Yeates, 
329,  S.  C,  the  point  was  made  in  the  Supreme  Court  of  this  state, 
in  the  year  1794,  whether  the  plaintiff's  being  a  citizen  of,  and  re- 
sident in  South  Carolina,  while  the  defendant  was  a  citizen  of,  and 
resident  in  Pennsylvania,  brought  the  plaintiff  within  the  benefit  of 
the  proviso,  and,  after  argument,  the  court  gave  judgment  for  the 
defendant.  This  case  may  be  considered  as  settling  the  law  on  the 
subject,  and  the  court  will  not,  without  very  cogent  reasons,  depart 
from  a  solemn  decision  on  the  point  in  dispute. 

That  provisos  of  this  description  are  not  favourably  viewed  by 
the  legislature,  is  apparent  from  the  repeal,  by  the  act  of  the  11th 
March,  1815,  of  the  proviso  in  the  act  of  26th  March,  1785,  sect., 
4,  relating  to  lands,  saving  the  right  or  title  of  persons  beyond  the 
seas,  or  from,  and  without  the  United  States  of  America.  This 
proviso  in  the  act  of  26th  of  March,  1785,  sect.  4,  is  one  of  several 
analogous  enactments  by  the  legislature,  showing,  that  by  the 
words  beyond  seas,  were  meant,  out  of  the  United  States.  Other  acts 
to  the  same  effect,  are  the  act  of  13th  April,  1791,  sect.  20,  Purcl. 
Dig.  574,  concerning  writs  of  errors,  and  appeals  from  the  Regis- 
ter's Court,  which  saves  the  rights  of  persons  out  of  the  limits  of 
the  United  States  of  America,  for  five  years  after  their  return  into 
some  one  state  of  the  United  States.  The  act  of  19th  April,  1794, 
Pnrd.  Dig.  292,  concerning  the  descent  of  intestates'  estates,  by  the 
18th  section  of  which,  any  relation  out  of  the  limits  of  the  United 
States,  may  claim  within  seven  years  after  his  return  into  the 
United  States:  and  the  act  of  the  4th  April,  1797,  sect.  4,  Purd. 
Dig.  495,  providing,  that  debts  of  deceased  persons  shall  not  be  a 
lien,  longer  than  seven  years,  excepting  debts  due  to  persons  out 
of  the  United  States  of  America. 

2d.  The  replication  is,  at  all  events,  bad.  It  does  not  aver  that 
the  plaintiff  has  never  come  into  Pennsylvania,  since  the  cause  of 
action  accrued.  A  person  who  comes  into  the  state,  is  within  the 
meaning  of  the  law,  whether  he  comes  to  reside  or  not.  In  Strit- 
horst  v.  Grceme,  3  Wils.  145,  2  Bl.  Rep.  723,  the  court  say,  that  if 
the  plaintiff  is  a  foreigner,  and  does  not  come  into  England,  in  fifty 
years,  he  has  still  six  years  after  his  coming  into  England,  to  bring 
his  action.  The  same  principle  was  adopted  in  New  York.  Rug- 
gles  v.  Kceler,  3  Johns,  263.  The  Supreme  Court  of  the  United 
Staffs,  in  Fnw  v.  Roberdeaii's  Executors,  3  Crane//,  174,  decided, 
that  if  an  act  of  limitations  have  a  saving  clause  in  favour  of  all 
persons  out  of  the  Commonwealth  three  years  after  their  disa- 
bilities are  removed,  a  creditor  resident  in  another  state,  removes 
his  disability  by  coming  into  the  Commonwealth,  even  for  tempo- 
rary purposes :  provided  the  debtor  be  at  that  time  within  the 
Commonwealth. 

VOL.  ix.  20 


290  SUPREME  COURT  [Philadelphia, 

(Thurston  and  others,  v.  Fisher,  Administrator  of  Dawes.) 

C.  J.  Ingersoll,  contra. 

1st.  The  argument  of  the  defendant  calls  on  the  court  to  legislate, 
by  striking  out  words  in  this  act,  and  inserting  those  expressed  in 
other  acts  on  different  subjects.  The  construction  to  be  given  by 
the  court,  must  be  of  the  words  used  in  this  act,  which  are  essen- 
tially different  from  the  language  of  other  acts  of  assembly.  And, 
whatever  may  have  been  former  impressions,  the  latter  authorities 
are  decisive,  that  the  words  "  beyond  seas/'  mean  out  of  the  juris- 
diction of  tjhe  state.  In  the  case  of  Murry  v.  Baker,  3  Wheat. 
541,  which  occurred  in  the  year  1818,  it  was  determined  by  the 
Supreme  Court  of  the  United  States,  after  argument,  that  the  terms 
"  beyond  seas  "  in  the  proviso,  or  saving  clause  of  a  statute  of  li- 
mitations, are  equivalent  to  without  the  limits  of  the  state,  where 
the  statute  is  enacted;  and  the  party  who  is  without  those  limits, 
is  entitled  to  the  benefit  of  the  exception.  After  this  decision,  no 
court  in  the  United  States  ought  to  hesitate  to  adopt  this  construc- 
tion :  they  ought  all  to  coincide  on  a  point  in  which  the  relative 
rights  of  the  citizens  of  every  state  are  concerned,  when  determined 
by  the  highest  judicial  authority  of  the  general  government.  To 
the  same  effect  as  this  case,  are  the  words  of  C.  J.  Marshall,  in 
Faw  v.  Robordeaifs  Executors,  3  Crunch.  177.  "  Beyond  sea, 
and  out  of  the  state,  are  analogous  expressions,  and  are  to  have 
the  same  construction."  The  case  of  Ward  v.  Hallam,  was  decided 
mainly  on  the  authority  of  Gustine  v.  Brattle,  a  very  absurd  case  : 
because  it  was  there  held,  that  Halifax  was  not  over  sea,  within 
the  meaning  of  the  Connecticut  act.'  In  Sleght  v.  Kane,  1  Johns. 
Case,  76,  the  Supreme  Court  of  New-York  held,  that  the  defen- 
dant being  within  the  British  lines  during  the  war,  and  departing 
with  the  British  at  the  close  of  the  war,  was  to  be  deemed  out  of 
the  state,  within  the  saving  clause  of  the  act  of  limitations,  during 
the  whole  time,  because  he  was  out  of  the  jurisdiction  of  the  state: 
he  was  quasi  out  of  the  realm,  and  no  writ  could  run  against  him. 

2d.  The  replication  is  in  the  precise  words  of  the  act  of  as- 
sembly. It  is  in  conformity  with  the  precedent  in  2  Chitt.  Plead. 
655,  which  uses  the  word,  return.  The  replication  in  3  Went- 
worth,  205,  departs  from  the  words  of  the  statute  21  James  I.  The 
defendant  cannot,  however,  make  this  objection  pn  a  general  de- 
murrer. He  ought  to  have  demurred  specially,  or  he  might  have 
rejoined  and  set  forth  such  facts  as  would  have  shown  thatthe  plain- 
tiffs had  been  within  Pennsylvania,  since  the  cause  of  action  ac- 
crued, and  six  years  before  the  suit.  He  also  cited  White  v.  Bai- 
ley, 3  Mass.  Rep.  271. 

Rawle,  in  reply.  It  is  an  established  rule  in  pleading,  that  the 
defendant  may  demur  to  part  of  a  declaration,  and  take  issue  on  the 
other  part :  but  a  plea,  or  replication  is  entire,  and  if  it  be  bad  in 
part,  is  bad  for  the  whole,  and  in  that  case,  the  demurrer  should  be 
to  the  whole  plea  or  replication.  1  Chitt.  643.  On  a  general  de- 
murrer the  whole  law  is  brought  before  the  court,  and  therefore, 


March,  1823.]  OF  PENNSYLVANIA.  291 

(Thurston  and  others  v.  Fisher,  Administrator  of  Dawes.) 

the  principal  point  is  to  be  decided.  On  this  point  the  case  of 
Ward  v.  Hallam,  is  conclusive;  and  the  spirit  of  this  case  has 
been  preserved  by  all  subsequent  acts  of  assembly.  That  case 
was  deliberately  settled,  on  principle:  not  on  the  authority  of  Gus- 
tine  v.  Brattle.  The  plaintiff  relies  on  the  decision  of  the  Supreme 
Court  of  the  United  States,  in  Murry  v.  Baker:  that  case  was  on 
an  act  of  the  State  of  Georgia,  which  was  not  quite  the  same"  a's 
our  act.  The  other  case  of  Faw  v.  Roberdeau'  s  Executors,  was 
on  an  act  of  the  State  of  Virginia:  and  it  does  not  appear  that  the 
State  Courts  of  Virginia  have  decided  to  the  contrary.  The  State 
Courts  are  riot  bound  by  the  decisions  of  the  Supreme  Court  of  the 
United  States,  in  the  construction  of  acts  of  assembly.  In  The 
Bank  of  the  United  States  v.  Fitzsimmons,  3  Binn.  342,  in  the  ques-. 
tion  concerning  the  lien  of  judgments  under  the  act  of  assembly  of 
the  4th  April,  1798,  this  court  decided  against  the  opinion  of 
Washington,  J.  in  the  Circuit  Court  of  this  District,  in  the  case  of 
Hurst  v.  Hurst,  3  Binn.  347,  note.  So  on  the  act  of  3d  of  April, 
1792,  for  taking  up  lands  west  of  the  Ohio  and  Allegheny,  this 
court  and  the  Supreme  Court  of  the  United  States,  persisted  in! 
different  opinions.  We  rely  therefore,  on  the  decision  in  Ward  v. 
Hallam,  as  settling  the  construction  of  the  act  of  limitations  on 
this  point. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  This  act  of  limitation  is  to  be  construed  according 
to  the  real  intention  of  the  legislature,  at  the  time  it  was  made? 
and  we  are  enabled  to  ascertain  this  in  some  measure,  by  a  recur- 
rence to  other  acts  of  assembly.  The  act  of  the  26th  of  March, 
1785,  which  prescribes  a  limitation  to  actions  brought  to  recover 
possession  of  land,  has  a  proviso  nearly  in  the  words  of  the  act  un- 
der consideration.  This  proviso  is  repealed  by  the  act  of  11th 
March,  1815,  so  far  as  it  relates  to  persons  "  beyond  the  seas,  and 
from,  and  without  the  United  States  of  America;^  which  clearly 
shows  the  understanding  of  the  legislature  on  the  subject;  for 
if  they  had  supposed  any  to  be  included  within  the  proviso,  who 
were  out  of  the  state,  not  out  of  the  United  States,  the  repealing 
clause  would  have  embraced  them  specially.  That,  however,  was 
thought  to  be  unnecessary.  In  the  act  of  the  13th  of  April,  1791, 
which  limits  the  time  of  bringing  writs  of  error,  the  proviso  is  in 
favour  of  those  who  shall  be  "  out  of  the  limits  of  the  United 
States ;"  which  must  be  understood  to  be  intended  as  equivalent 
in  meaning  to  the  words  "  beyond  sea."  In  1713,  when  the  act 
under  consideration  was  passed,  there  was  no  confederation  of  the 
states,  and  there  was,  therefore,  no  apt  and  definite  term  to  express 
absence  from  the  British  possessions  in  America,  and  this  I  take 
to  be  the  reason  why  the  term  "  beyond  sea,"  which  means  the 
same  thing  was  borrowed  from  the  English  law.  "  By  the  Eng- 
lish law,"  says  Sir  Wm.  Blackstone,  "  children  born  in  wedlock 
may,  in  some  instances,  be  bastards:  as  if  the  husband  be  out  of  the 


292  SUPREME  COURT  [Philadelphia, 

(Thurston  and  others  v.  Fisher,  Administrator  of  Dawes.) 

kingdom  of  England,  (or  as  the  law  somewhat  loosely  phrases  it 
extra  quatuor  maria,)  for  above  nine  months,  so  that  no  access 
to  his  wife  can  be  presumed."  Now  it  is  to  be  noted,  that  the  no- 
tion our  ancestors  attached  to  being  out  of  the  kingdom  was,  ab- 
sence beyond  the  four  seas  ;  the  narrow  seas,  whether  by  right  or 
by  wrong,  being  claimed  as  a  part  of  the  British  domain.  Extra 
quatuor  maria,  was  precisely  the  same  meaning  as  the  words  be- 
yond sea  ;  and  it  is,  therefore,- difficult  to  discover  on  what  ground 
the  English  courts  extended  the  saving  in  their  statutes  of  limita- 
tion to  persons  in  Ireland,  unless  that  country,  being-  a  separate 
kingdom,  were  considered  to  be  no  part  of  the  realm.  What  effect 
the  union  of  Great  Britain  and  Ireland  may  have  on  the  construc- 
tion of  this  clause  in  their  act,  remains  to  be  seen.  When,  how- 
ever, our  legislature  came  to  pass  the  act  of  1705,  against  adultery, 
instead  of  using  the  words,  beyond  sea,  to  signify  absence  from  the 
British  American  possessions,  as  the  subject  required  peculiar  ac- 
curacy of  expression,  the  object  being  to  define  a  criminal  offence, 
they  declare  that  a  married  woman  having  a  child  born  of  her  body, 
when  the  husband  "  has  not  been  in  some  of  the  Queen's  colonies 
or  plantations  in  this  continent,  betwixt  the  eastmost  parts  of  New- 
England,  and  the  southernmost  parts  of  North  Carolina,"  within 
twelve  months  preceding  the  birth,  shall  be  punished  as  an  adultress. 
But  in  all  acts  passed  after  the  union  of  the  states,  we  find  the 
saving  extended  only  to  those  who  are  out  of  the  United  States. 
Why  then  extend  the  saving  to  those  who  are  only  out  of  the  state  ? 
That,  beside  being  contrary  to  the  common  acceptation  of  the 
phrase,  would  extend  the  benefit  to  a  class  of  persons  who  are  not 
within  the  reason  of  the  provision.  The  intercourse  between  the 
states  cannot,  be  suspended  by  hostilities,  or  impeded  by  the  risks 
and  uncertainty  of  communication  by  sea.  By  the  constitution  of  the 
United  States,  the  citizens  of  the  union  have  equal  privileges  in  each 
particular  state,  and  tribunals  are  provided  expressly  for  the  impartial 
administration  of  justice  between  citizens  of  different  states.  The  states 
are  held  together  not  only  by  a  common  political  bond,  but  their  in- 
tercourse is  facilitated  by  a  similarity  of  customs,  language  and 
laws  ;  and  in  this  respect  there  is  a  difference  between  them  and  the 
subjects  of  foreign  governments,  which  might  well  be  thought  to  call 
for  a  distinction  with  respect  to  the  necessity  of  prosecuting  a  right 
of  action.  The  only  thing  to  favour  a  contrary  construction,  is  found 
in  the  saving  clause, itself,  which  allows  the  statute  to  begin  to  run 
from  the  time  of  the  party's  "returning  into  the  province,"  and 
hence  it  is  inferred,  that  the  party  must  necessarily  have  been  within 
the  saving,  while  he  was  barely  out  of  the  province.  But  it  is  plain 
from  the  context,  that  by  returning  into  the  province,  the  legislature 
meant  returning  from  beyond  sea,  or  to  speak  more  accurately,  into- 
the  British  possessions  in  America. 


March,  1823.]  OF  PENNSYLVANIA.  293 

(Thurston  and  others  v.  Fisher,  Administrator  of  Dawes.) 

The  point,  however,  has  already  been  decided  by  this  court,  on 
due  consideration ;  and  unless,  therefore,  it  were  palpably  wrong, 
we  would  not  be  justified  in  departing  from  that  precedent.  With 
respect  to  the  case  of  Murray  v.  Baker ,  3  Wheaton,  541,  decided 
by  the  Supreme  Court  of  the  United  States,  I  can  only  say,  that  all 
the  decisions  of  that  court  are  entitled  to  great  respect ;  but  unless 
in  cases  where  it  has  appellate  jurisdiction,  and  may  revise  and  cor- 
rect the  decisions  of  the  state  courts,  its  opinions  are  not  conclusive; 
and  however  proper  its  decision  may  have  been  with  respect  to 
the  statute,  on  which  it  was  called  to  put  a  construction,  it  can 
furnish  no  satisfactory  guide  to  us  in  the  construction  of  our  own 
acts  of  assembly .- 

Besides  the  general  principle  involved  by  the  dumurrer,  there  is 
an  objection  to  the  plea,  which  this  decision  of  the  general  question 
would  render  it  unnecessary  to  consider.  The  plea  merely  states, 
that  the  plaintiff  was  resident  out  of  the  state,  without  specially 
denying  that  he  had  been  in  the  state  within  the  period  material  to 
the  question ;  and  we  are  all  of  opinion,  that  even  if  absence  from 
the  state  were  sufficient  to  satisfy  the  saving-  elause,[still  the  want  of 
this  negative  averment  would  render  the  plea  faulty.  There  is  no 
clearer  rule  of  pleading,  than  that  a  party  who  wishes  to  bring  him- 
self within  the  benefit  of  an  exception,  must  expressly  aver  every 
fact  and  circumstance  necessary  to  do  so,  whether  it  be  negative  or 
positive.  A  party  whose  right  of  action  is  protected  by  his  absence, 
loses  his  protection  the  instant  he  sets  his  foot  within  the  prescribed 
limits  ;  for  from  that  time,  the  statute  begins  to  run.  The  defendant 
must  have  judgment. 

Judgment  for  defendant. 


294  SUPREME  COURT  [Philadelphia, 


[Philadelphia,  April  7th,  1823.] 

KLINE  agamst  WOOD. 

IN  ERROR. 

Where  sonic  of  the  counts  of  the  declaration  in  an  action  of  assumpsit,  were  for  da- 
mages  sustained  by  the  defendant's  selling  to  the  plaintiff  an  unsound  horse,  for 
the  sum  of  80  dollars,  and  the  verdict  was  for  40  dollars,  held  that  the  cause  of  ac- 
tion was  not  within  the  jurisdiction  of  the  District  Court  of  the  city  and  county  of 
Philadelphia,  though  these  counts  averred  that  the  plaintiff  had  been  put  to  ex- 
pense in  feeding  and  keeping  the  horse,  to  the  amount  of  150  dollars. 

The  District  Court  has  not  jurisdiction  in  cases  of  contract,  where  the  value  of  the 
thing  put  in  demand  by  the  plaintiff's  declaration,  is  under  100  dollars. 

The  District  Court  has  not  jurisdiction  wherever  the  plaintiff  could  not  recover  costs, 
if  he  had  sued  in  the  Court  of  Common  Pleas,  before  the  erection  of  the  District 
Court,  without  having  filed  an  affidavit. 

Query,  what  would  be  the  criterion  to  determine  the  value  of  the  matler  in  contro- 
versy in  cases  of  contract,  where  the  award  of  arbitrators  in  an  action  in  the  Dis- 
trict Court  is  under  100  dollars? 

The  Court  of  Common  Pleas  of  the  county  of  Philadelphia,  have  jurisdiction  in  civil 
actions,  where  the  demand  is  under  100  dollars,  but  the  plaintiff  cannot  recover 
costs. 

If  a  general  verdict  be  given  on  several  counts,  some  of  which  arc  for  demands  not 
within  the  jurisdiction  of  the  court,  it  is  bad  for  the  whole. 

Error  to  the  District  Court  for  the  city  and  county  of  Philadelphia. 

Samuel  R.  Wood,  the  plaintiff  below,  brought  this  action  against 
John  Kline,  the  defendant  below,  in  assumpsit  on  the  warranty  of 
the  soundness  of  a  horse. 

The  declaration  stated  in  the  Jirst  count,  that  on,  &c.  at,  &c.  in 
consideration  that  the  said  Samuel,  at  the  special  interest  and  re- 
quest of  the  said  John,  would  buy  of  him  a  certain  horse,  at  and 
for  a  certain  price  or  sum  of  money,  to  wit,  the  price  of  80  dollars, 
to  be  therefore  paid  by  the  said  Samuel,  he  the  said  John  under- 
took, and  then  and  there  faithfully  promised  the  said  Samuel,  that 
the  said  horse  then  was  sound  ;  and  the  said  Samuel  avers,  that  he, 
confiding  in  the  said  promise  and  undertaking  of  the  said  John, 
did  afterwards,  to  wit,  on,  &c.  at,  &c,  buy  the  said  horse  of  the 
said  John,  and  then  and  there  paid  him  for  the  same,  the  said  sum 
of  80  dollars ;  nevertheless  the  said  John,  contriving,  &c.  did  not 
perform,  &c,  but  thereby  craftily  and  subtilely  deceived  and  defraud- 
ed the  said  Samuel  in  this,  to  wit,  that  the  said  horse  at  the  time, 
&c.  was  not  sound,  but  on  the  contrary  was  at  that  time  unsound, 
whereby  the  said  horse  became  and  was  of  no  use  or  value  to  the 
said  Samuel,  and  he  the  said  Samuel  hath  been  put  to  great  charges 
and  expenses  of  his  money  in  and  about  the  feeding,  keeping,  and 
taking  care  of  the  said  horse,  in  the  whole  amounting  to  a  large 
sum  of  money,  to  wit,  the  sum  of  150  dollars.  The  second  count 
stated,  that  afterwards,  to  wit,  on,  &c.  at,  &c,  in  consideration  that 
the  said  Samuel,  at  the  like  special  interest  and  request  of  the 
said  John  had  then  and  there  bought  of  the  said  John  a  certain 


March,  1823.]  OF  PENNSYLVANIA.  295 

(Kline  v.  Wood.) 

other  horse,  at  and  for  a  certain  other  price  or  sum  of  money,  then 
and  there  agreed  upon  between  the  said  Samuel  and  the  said  John, 
he  the  said  John  undertook,  &c.,that  the  said  last  mentioned  horse, 
at  the  time  of  the  sale,  was  sound :  nevertheless  the  said  John,  con- 
triving, &c.  did  not  perform,  &c,  but  craftily  and  subtilely  deceived 
and  defrauded  the  said  Samuel  in  this,  to  wit,  that  the  said  last 
mentioned  horse,  at  the  time  of  the  sale  thereof,  was  unsound  ; 
whereby  the  same  horse  then  and  there  became,  and  was,  of  no 
use  or  value  to  him  the  said  Samuel,  and  he  the  said  Samuel  hath 
been  put  to  great  charges  and  expenses  of  his  moneys,  in  and  about 
feeding,  keeping,  and  taking  care  of  the  said  last  mentioned  horse, 
in  the  whole  amounting  to  a  large  sum  of  money,  to  the  sum  of 
150  dollars.  The  third  count  was  for  150  dollars,  money  lent  and 
advanced,  paid,  laid  out,  and  expended,  and  money  had  and  re- 
ceived :  conclusion,  to  the  damage  of  the  plaintiff"  200  dollars.  The 
defendant  pleaded,  non  assumpsit,  with  leave  to  give  the  special 
matter  in  evidence.  The  Jury  gave  a  verdict  for  the  plaintiff, 
for  40  dollars  damages  ;  and  on  motion  by  the  defendant  in  the 
court  below  to  arrest  the  judgment,  the  court  overruled  the  motion. 

Stroud,  for  the  plaintiff  in  error,  now  contended,  that  the  court 
below  had  no  jurisdiction,  the  sum  in  controversy  being  under  100 
dollars.  The  act  of  30th  March,  1811,  Purd.  Dig.  332,  erecting 
the  District  Court  for  the  city  and  county  of  Philadelphia,  pro- 
vides, in  the  first  section,  that  the  District  Court  shall  have  no  ju- 
risdiction except  where  the  sum  in  controversy  shall  exceed  100 
dollars  ;  and  the  court  is  continued  by  subsequent  acts  with  the  same 
jurisdiction.  In  this  suit,  the  demand  of  the  plaintiff,  in  point  of 
law,  was,  for  the  difference  between  the  money  paid  for  the  horse, 
and  the  price  for  which  he  was  resold,  if  a  resale  took  place,  or  his 
value,  if  the  plaintiff  retained  him.  If  the  horse  were  worthless, 
the  plaintiff's  claim  could  only  be  for  80  dollars  which  he  paid_and 
interest :  but  by  the  verdict  of  the  jury  it  appears,  that  the  loss  ac- 
tually sustained  was  but  40  dollars.  So  that  considered  in  any  point 
of  view,  the  court  had  no  jurisdiction  of  the  case.  In  actions  found- 
ed purely  in  tort,  such  as  trespass  vi  et  armis,  &c,  there  is  no 
standard  by  which  the  sum  in  controversy  can  be  estimated,  but 
the  amount  of  damages  laid  in  the  declaration.  Ancora  v.  Burns, 
5  Binn.  522.  This  rule  however  does  not  hold  in  matters  of  con- 
tract. The  party  might  give  the  Supremo  Court  jurisdiction,  as 
well  as  the  District  Court,  in  actions  of  debt  or  assumpsit,  if  it 
were  sufficient  to  lay  the  damages  in  the  declaration  at  a  sum  above 
100  dollars. 

Barclay,  contra.  Where  a  cause  is  tried  upon  its  merits,  the 
court  will  support  the  verdict  if  possible.  This  verdict  was  given 
after  a  full  hearing,  and  the  court  below,  who  judged  from  tlie  evi- 
dence on  the  trial,  refused  to  arrest  the  judgment.  The  action  here 
is  not  assumpsit  for  a  sum  certain:  but  to  recover  damages  for  breach 
of  warrant  v,  and  sounds  in  tort.     The  value  of  the  horse  was  not 


• 


296  SUPREME  COURT  [Philadelphia, 

(Kline  v  Wood.) 

necessary  to  be  stated  in  the  declaration,  and  was  immaterial ;  the 
sum  in  controversy  was  the  damages  sustained  by  the  plaintiff,  in 
consequence  of  the  purchase  and  warranty,  which  is  stated  at  150 
dollars,  and  the  facts  might  perhaps  have  justified  another  jury  in 
giving  that  sum.  The  declaration  states,  besides  the  loss  of  the 
horse,  that  the  plaintiff  was  put  to  great  expense  in  feeding  and 
taking  care  of  him,  altogether  to  the  amount  of  150  dollars.  He 
cited  Smith  v.  Rutherford,  2  Serg.  8f  Raiole,  360.  Wilson  v. 
Daniel,  3  Ball.  401.  Hancock  v.  Barton,  1  Serg.  Sf  Rawle,  271. 
Hulscamp  v.  Teel,  2  Ball.  356.  Bazire  v.  Barry,  3  Serg.  fy  Rawle, 
461. 

Stroud  in  reply.  Notwithstanding  the  conclusion  of  the  decla- 
ration, the  difference  between  the  price  at  which  the  horse  was 
brought,  and  was  afterwards  sold,  is  the  only  criterion  of  damages. 
The  expense  of  horse  keeping,  or  any  other  resulting  damage,  could 
not  legally  be  taken  into  consideration  by  the  jury. 

The  opinion  of  the  court  was  delivered  by 

Duncaiv,  J.  The  question  raised  respects  the  jurisdiction  of  the 
District  Court  of  the  city  and  county  of  Philadelphia  ;  and  where  a 
court  so  highly  respectable,  and  so  deserving  of  all  respect,  have 
asserted  and  deliberately  exercised  a  jurisdiction,  their  judgment  is 
to  be  very  fully  considered  by  a  court  of  supervision ;  and  before 
they  reverse  it,  they  should  feel  a  perfect  conviction  of  the  error. 

It  is  not  the  case  of  a  new  jurisdiction,  proceeding  in  a  way  un- 
known to  the  common  law,  but  a  common  law  tribunal,  proceed- 
ing according  to  the  common  law,  with  a  limited  and  defined  juris- 
diction. The  act  of  30th  March,  1811,  providing  for  an  additional 
court  within  the  city  and  county  of  Philadelphia,  gives  this  court 
power  to  try,  hear,  and  determine  all  civil  pleas,  and  actions,  real, 
personal  and  mixed ;  provided,  that  the  said  court  shall  have  no 
jurisdiction,  either  originally,  or  an  appeal,  except  where  the  sum  in 
controversy  shall  exceed  100  dollars.  It  is  contended  by  the  plaintiff 
in  error,  that  on  the  face  of  the  declaration  it  appears  that  the  sum 
really  in  controversy  was  under  100  dollars,  and  that  the  plaintiff 
never  could,  in  this  form  of  action,  recover  more  than  80  dollars, 
the  price  of  the  horse.  The  defendant  in  error  contends,  that  it  is 
an  action  sounding  in  damages,  partaking  more  of  the  nature  of  tort, 
than  of  contract ;  and  that  the  claim  of  the  plaintiff  was  150  dollars, 
which  must,  in  all  cases,  be  taken  to  be  the  sum  in  controversy ; 
the  jurisdiction  of  a  court  not  depending  on  the  verdict  of  a  jury, 
but  on  the  claim  of  the  plaintiff. 

Keeping  our  eye  on  this  declaration,  however  various  the  courts 
are,  we  must  see  that  it  is  an  action  of  assumpsit  on  the  warranty  of  a 
horse  sold  by  the  plaintiff  below,  to  the  defendant,  for  80  dollars.  The 
ancient  mode  of  declaring  in  cases  of  warranty,  was  in  tort,  on  the  war- 
ranty broken  ;  but,  of  late  years,  it  has  been  found  more  convenient 
to  declare  in  assumpsit,  for  the  sake  of  adding  money  counts.      The 


March,  1823.]  OF  PENNSYLVANIA.  297 

(Kline  v.  Wood.) 

propriety  of  this  practice  is  generally  acknowledged  ;  it  has  pre- 
vailed for  more  than  fifty  years. 

The  first  count  in  this  declaration  states  the  sale,  the  price  80 
dollars,  the  warranty,  and  the  unsoundness ;  and  that  the  plaintiff 
was  put  to  great  charges  and  expenses  of  his  moneys,  in  and  about 
the  feeding,  and  taking  care  of  the  said  horse,  the  whole  amounting 
to  150  dollars. 

The  second  count  sets  out  the  sale,  warranty,  and  unsoundness 
of  another  horse,  sold  for  a  certain  other  price  or  sum  of  money, 
then  and  there  agreed  upon,  the  expenditure  in  keeping,  &c.  150  dol- 
lars, and  there  is  no  material  difference  between  the  first  and  se- 
cond counts,  except  that  the  second  does  not  state  any  price  for 
which  the  horse  was  sold. 

The  third  count  contains  the  usual  money  counts,  for  150  dollars 
lent  and  advanced,  and  for  money  had  and  received,  and  the  de- 
claration concludes  to  the  plaintiff's  damage,  200  dollars.  There  is  a 
general  verdict  and  judgment  on  all  the  counts.  We  must  consider 
this  as  one  cause  of  action ;  the  verdict  being  taken  generally  on  all 
the  counts,  and  the  plaintiff  having  taken  judgment  on  all.  If  it  ap- 
pears that  the  court  had  no  jurisdiction  on  any  one  of  them,  the  judg- 
ment must  be  reversed  ;  for  it  cannot  be  known,  on  what  count  the 
verdict  was  taken. 

It  will  be  proper  to  take  into  view  the  several  acts  of  the  legis- 
lature with  relation  to   the  jurisdiction  of  justices  of  the  peace,  the 
Court  of  Common  Pleas,  and  the  District  Court.     They  are  all  in 
pan  materia,  and  evidence  what  was  the  real  design  and  policy 
of  the  several  enactments.     By  the  act   1st  March,  174:5,  all  ac- 
tions for  debts  or  other  demands,  not  exceeding  five  pounds,  are 
made  cognizable  before  any  justice  of  the  peace ;  and  if  any  person 
shall  commence   or  prosecute  a  suit  for  any  debt  or  demand,  in 
other  manner  than  is  directed  by  the  act,  and  shall  obtain  a  verdict 
or  judgment  for  debt  or  demand,  which  without  costs  of  suit,  will 
not  amount  to  more  than  five  pounds,  (not  having  previously  filed 
an  affidavit  in  the  proihonotary's  office,  that  he  verily  believed  the 
debt  due  or  damages  sustained,  exceeded  the  sum  of  five  pounds,) 
he  shall  not  recover  any  costs  of  suit.     They  excepted  actions  of 
debt  for  rent,  or  bond  for  performance  of  covenants,  covenant,  re- 
plevin, actions   on   any  real   contract,  trover,  slander,  assault  and 
battery,  or  imprisonment,  and   actions  wherein  the   title  to  lands 
should  in  any  wise  come  in  question.    The  act  of  10th  April,  1794, 
enlarges  the  jurisdiction  to  twenty  pounds ;  and  the   act  of  20th 
March,  1810,  extends  it  to  all  causes  of  action,  arising  from  con- 
tract, either  express   or  implied,  in   all   cases  where  the  sum  de- 
manded is  not  above  100  dollars,  except  in  cases  of  real  contracts, 
where  the  title  to  lands  may  come   in  question,   or  on  promises  of 
marriage.     The  provision  in  this  act  is  the   same   with  respect  to 
costs,  where  a  sum,  not  exceeding  100  dollars  is  recovered,  as  in 
former  acts. 

VOL. IX.  2  P 


298  SUPREME  COURT  [Philadelphia, 

(Kline  v.  Wood.) 

By  the  act  erecting  the  District  Court,  all  jurisdiction  is  taken 
from  the  Common  Pleas,  in  civil  actions  where  the  sum  in  contro- 
versy exceeds  100  dollars.  It  seems  an  opinion  prevails,  that  the 
Court  of  Common  Pleas  of  the  city  and  county  of  Philadelphia, 
have  no  original  jurisdiction  of  debts  or  demands,  not  exceeding  100 
dollars.  I  cannot  find  any  thing,  in  any  act  of  assembly,  touching 
the  jurisdiction  of  that  court,  to  give  countenance  to  this  opinion. 
Their  jurisdiction  only  ceases,  when  the  sum  in  controversy  ex- 
ceeds 100  dollars,  for  that  is  transferred  to  the  District  Court. 
The  original  jurisdiction  is  not  taken  away  by  the  act  extending 
the  jurisdiction  of  justices  of  the  peace.  On  the  contrary,  it  is 
Recognised.  The  suitor  prosecutes  his  claim  in  that  court,  at  his 
own  risk  of  recovering  no  costs,  just  as  he  did  before  the  District 
Court  act.  The  jurisdiction  remains  unimpaired,  either  by  the  Dis- 
trict Court  act,  or  the  100  dollar  act.  It  is  not  taken  away  in  ex- 
press terms,  nor  can  they  be  deprived  of  it  by  any  implication. 
Very  different  is  it  in  the  District  Court.  The  act  which  calls  it 
into  existence  negatives  its  jurisdiction,  either  originally  or  on  ap- 
peal, where  the  sum  in  controversy  shall  exceed  100  dollars.  The 
jurisdiction  of  the  Common  Pleas  remains  with  it,  in  all  cases  where 
it  is  not  transferred  to  the  District  Court,  and  in  all  cases  where  it 
is  transferred,  it  is  declared,  that  it  shall  thenceforth  cease  and  de- 
termine. All  courts  of  Common  Pleas  have  original  inherent  ju- 
risdiction ;  but  the  legislature  have  thought  proper  to  provide,  that 
if  the  suitor  does  not  recover  100  dollars,  he  shall  not  recover  costs. 
But  it  is  said,  there  is  some  incongruity  in  this  ;  that  the  plaintiff 
cannot  secure  himself  in  this  Court  of  Common  Pleas  as  he  can  in 
the  other  courts,  from  payment  of  costs  by  a  previous  affidavit. 
This  may  be  so ;  but  the  reason  is,  that  if  the  plaintiff  makes  the 
affidavit  that  his  demand  exceeds  100  dollars,  he  applies  to  a  court, 
which  by  his  own  affidavit,  has  no  jurisdiction  in  the  subject  mat- 
ter. It  is  a  clear  principle  in  the  construction  of  statutes,  that  the 
jurisdiction  of  a  court  of  record  cannot  be  taken  away,  but  by  ex- 
press negative  words.  3  Yeates,  479.  2  Burr.  1042.    1  Wm.  Bl.  285. 

The  action  in  the  present  case  is  clearly  an  action  on  the  con- 
tract ;  and  it  is  an  action  on  the  contract,  where  there  is  a  measure 
of  damages,  namely,  the  difference  between  the  value  of  a  sound 
horse,  and  one  with  such  defects  as  existed  at  the  time  of  the  war- 
ranty. In  an  action  for  the  price  of  articles  sold,  the  defendant 
may  give  in  evidence  by  way  of  defalcation,  a  warranty  of  the  ar- 
ticles, and  a  breach  thereof.  Steigleman  v.  Jeffries,  1  Serg.  fy 
Rawle,  477.  It  was  there  observed  by  the  Chief  Justice,  that 
the  defalcation  act  did  not  embrace  a  claim  of  unliquidated  damages 
for  any  matter  in  nature  of  a  tort,  because,  in  such  case,  there  is 
no  standard  by  which  the  damages  can  be  estimated.  But  in  the 
present  case,  the  objection  is  not  so  strong.  The  amount  of  the  da- 
mages, to  be  sure  cannot  be  reduced  to  a  certainty  ;  but  the  price 
agreed  to  be  paid  for  the  article  purchased,  is  some  rule  in  making 


* 


March,  1823.]  OF  PENNSYLVANIA.  299 

(Kline  v.  Wood.) 

the  estimate ;  it  is  a  boundary  beyond  which  the  damages  cannot 
reasonably  be  suffered  to  pass  ;  and  Mr.  Justice  Yeates  observed, 
this  warranty  was  not  a  tort,  where  individual  feelings  determine 
the  quantum  of  damages  without  any  known  standard.  If  the  burr 
mill  stones,  the  article  warranted,  were  of  so  bad  a  quality,  as  to  be 
wholly  useless  in  the  hands  of  the  vendee,  it  would  operate  against 
a  recovery  of  any  part  of  the  sum  agreed  on  ;  if  they  are  of  so  infe- 
rior a  grade,  that  the  mill  stones  would  not  sell  for  above  two-thirds, 
or  one-half  of  the  sum  which  good  mill  stones  would  command,  at  a 
fair  market,  the  sum  recovered  would  naturally  be  in  the  same  pro- 
portion :  so  that  there  would  be  some  rule  of  estimating  the  damages 
sustained.  lb.  On  this  principle,  which  is  believed  to  be  correct, 
what  was  the  sum  in  controversy  here  ?  The  difference  between 
the  value  of  a  sound  and  an  unsound  horse,  having  regard  to  the 
price  for  which  the  horse  was  sold.  The  horse  was  sold  for  80  dol- 
lars. Suppose  him  to  be  an  inferior  horse,  or  a  worthless  horse; 
still  no  more  could  be  recovered  than  the  value  of  a  sound  horse. 
That  value  is  fixed  on  this  horse  by  the  agreement  of  the  parties.  I  do 
not  discover  auy  legal  principle  that  would  justify,  in  addition  to  thisy 
an  allowance  for  keeping  him. 

It  was  at  one  time  doubted,  whether,  if  the  horse  was  not  imme- 
diately returned,  there  could  be  a  recovery  :  but  it  was  decided  there 
might  be  a  recovery,  governed  by  the  consideration  of  the  difference 
in  value  between  the  horse,  sound  and  unsound.  Taking  as  the 
maximum,  the  price  for  which  the  horse  was  sold,  if  the  party  goes 
for  more,  his  action  should  be  in  deceit,  case,  which  would  include  all 
special  damages.  It  would  be  unreasonable,  that  the  vendee  should 
keep  the  horse  for  months  or  years,  and  then,  not  only  resort  to  the 
vendor  for  the  price  of  his  horse,  but  for  the  expense  of  keeping  him, 
and  trying  experiments  on  him.  In  the  case  of  Byrne  v.  Gordon,  2 
Brown,  275,  there  are  many  just  observations  made  by  the  presi- 
dent of  the  court,  and  the  criterion  is  a  very  just  one,  that  to  give  the 
District  Court  jurisdiction,  it  must  appear  that  the  sum  in  controversy, 
exceeds  one  hundred  dollars  ;  though  I  cannot  agree  to  one  conclu- 
sion, that  is,  that  the  court  before  which  the  trial  is,  will  judge  from 
the  evidence  in  the  cause,  what  that  sum  is.  For  how  would  it  be  on  a 
judgment  on  a  report  of  arbitrators  ?  There  must  be  some  other  cri- 
terion :  there  is  another  criterion.  In  Wilson  v.  Daniel,  3  Dull. 
407,  the  criterion  of  Chief  Justice  Ellsworth,  appears  to  me  to  af- 
ford the  best  rule.  The  demand  of  the  plaintiff,  in  these  questions 
of  jurisdiction,  is  not  alone  to  be  regarded,  but  the  value  of  the  thing 
put  in  demand  ;  the  nature  of  the  case  must  certainly  guide  the  judg- 
ment of  the  court.  And  when  the  law  makes  a  rule,  the  rule  must 
be  pursued.  Thus,  in  debt  on  a  bond  for  £100,  the  principal  and 
interest  are  put  in  demand,  and  the  party  can  recover  no  more, 
though  he  may  lay  the  damages  at  £10,000.  The  form  of  action, 
in  that  case,  gives  the  legal  rule.     But  in  an  action  of  trespass,  and 


300  SUPREME  COURT  [Philadelphia, 

(Kline  v.  Wood.) 

other  torts,  where  the  law  prescribes  no  limitation  to  the  amount  to 
be  recovered,  the  plaintiff  has  a  right  to  estimate  his  damages  at 
any  sum.  The  damage  stated  in  the  declaration  is  the  thing  put 
in  demand.  The  proposition  then  is  simply  this,  where  the  law 
gives  no  rule,  the  demand  of  the  plaintiff  must  furnish  one  :  but  where 
the  law  gives  the  rule,  the  legal  cause  of  action,  and  not  the  plain- 
tiff's demand,  must  be  regarded,  and  of  this  opinion  was  judge  Chase. 
There  is  something  so  plain,  so  just,  and  common  sense-like,  in  this 
proposition,  as  to  recommend  it  to  respect,  and  command  our  appro- 
bation. 

The  legal  cause  of  action  was  contract,  and  the  law  prescribed 
the  rule,  the  estimate  of  the  value  between  this  horse  in  a  sound, 
and  an  unsound  state  ;  which  value  could  never  exceed  the  price 
given  for  the  horse.  But  there  is  another  criterion,  and  that  is, 
where  justices  of  the  peace  have  jurisdiction  of  the  sum  in  contro- 
versy. Wherever  the  plaintiff  could  not  recover  costs  if  he  sued 
in  the  Court  of  Common  Pleas,  unless  he  had  filed  a  previous  af- 
fidavit, before  the  erection  of  the  District  Court,  there  the  District 
Court  have  no  jurisdiction.  It  was  the  policy  of  the  legislature  of 
this  state,  to  confine  to  the  inferior  tribunals,  the  determination  of 
such  matters  as  these.  They  thought  proper  to  confide  in  their  ju- 
risdiction, and  so  far  as  the  Court  of  Common  Pleas  are  concerned, 
the  inferior  jurisdiction  is  encouraged,  by  exposing  the  suitor  to  a 
loss  of  costs,  where  he  has  recourse  to  Common  Pleas,  and  re- 
covers less  than  100  dollars,  unless  he  has  filed  a  previous  affidavit. 
But  still  the  Common  Pleas  have  jurisdiction  beyond  that  sum,  and 
their  judgment  for  the  sum  found  for  the  plaintiff  by  the  jury,  though 
under  100  dollars,  would  be  good;  it  would  be  reversed  for  the  costs. 
My  private  opinion  is,  that  it  was  not  intended  by  the  District 
Court  act,  and  that  the  absolute  prohibition  of  jurisdiction  slipped  in 
unwarily,  while  the  intent  most  probably  was,  to  place  that  court 
oil  the  same  footing  as  the  courts  of  Common  Pleas  throughout  the 
state.  This  is  mere  conjecture,  and  cannot  prevail  against  the  posi- 
tive, clear  words  of  the  law,  in  the  District  Court  act.  The  words 
are,  "sum  in  controversy."  In  the  100  dollar  act,  giving  justices 
jurisdiction,  it  is  "of  all  causes  of  action  arising  from  contract, 
where  the  sum  demanded  is  not  above  100  dollars."  Now  "sum 
demanded,"  and,  "  sum  in  controversy,"  have  precisely  the  same 
meaning.  The  demand  of  a  sum  is  the  sum  in  controversy.  But 
this  has  been  already  settled,  the  question  arose  in  Sneivlyy.  Weid- 
manr  1  Serg.  $  Raivle,  417,  and  it  was  there  determined,  that 
an  action  of  assumpsit  on  the  warranty  of  a  horse,  was  within  the 
jurisdiction  of  a  justice  of  the  peace,  under  the  act  of  1st  March, 
1745,  and  19th  \ftpril,  1794,  and  that  the  plaintiff  having-  brought 
this  action  in  the  Common  Pleas,  and  recovered  less  than  £20, 
he  was  not  entitled  to  costs.  This  goes  far  to  settle  the  present 
question.  Debt  and  other  demands,  is  not  more  comprehensive 
than  the  sum  in  controversy;  yet  the  court  held,  that  as  the  action  wcs 


March,  1823.]  OF  PENNSYLVANIA.  301 

(Kline  v.  Wood.) 

founded  on  contract,  though  the  damages  were  uncertain,  it  was 
included  in  the  words,  debt  or  demand  not  exceeding  <£20. 

Sum  in  controversy,  does  not  signify  a  precise  sum  in  numero, 
no  more  than  the  word  demand  does.  Demands  and  sum  in  con- 
troversy, are  the  same.  But  this  act  is  more  comprehensive  than 
the  acts  of  1745  and  1794.  There  are  only  two  exceptions  to  the 
jurisdiction  of  justices,  in  actions  founded  on  promise ;  and  these 
are  acts  founded  on  a  promise  of  marriage,  and  contracts  respect- 
ing the  realty.  It  is  evident,  that  a  justice  of  the  peace  had  juris- 
diction of  this  cause  of  action,  and  if  it  had  been  brought  in  the 
Common  Pleas,  before  the  erection  of  the  District  Court,  the  plain- 
tiff could  not  recover  costs,  and  the  words  of  the  act  erecting  this 
court,  are  too  plain  and  unambiguous,  to  leave  any  doubt  in  our 
minds,  that  the  District  Court  had  no  jurisdiction,  and  that  it  is 
quite  inconsistent  with  the  policy  of  the  whole  legislation  on  this 
subject,  to  enable  the  plaintiff*  to  expose  a  defendant  to  the  costs  of 
suit  in  a  superior  court,  by  a  bare  suggestion,  or  conclusion  to  his 
declaration,  that  he  claimed  damages  to  a  sum  exceeding  100  dol- 
lars, where  his  cause  of  action  shows  he  never  can  recover  that 
sum. 

This  criterion  will  not  apply  to  all  cases.  But  the  safest  con- 
struction of  this  provision  is,  that  where  the  declaration  states  a 
cause  of  action  founded  on  a  contract,  where  the  subject  matter  ex- 
ceeds 100  dollars,  and  the  District  Court  gives  judgment,  there 
the  jurisdiction  is  to  be  sustained,  though  the  recovery  is  far  less 
than  100  dollars.  For  if  the  ultimate  recovery  was  to  govern,  then, 
though  the  sum  was  reduced  by  defalcation,  this  not  appearing  on 
the  record,  the  plaintiff*  could  not  only  not  recover  costs,  contrary 
to  all  justice,  but  would  be  thrown  out  of  court,  and  thus  under- 
stood, the  opinion  of  Judge  Hemphill,  in  the  case  in  Browne, 
would  be  quite  correct,  that  the  court  would  judge  of  the  jurisdic- 
tion from  the  evidence  in  the  cause.  But  where  on  the  declaration 
the  whole  subject  matter  of  the  contract  does  not  exceed  100  dol- 
lars, as  it  is  set  out  in  the  declaration,  there  the  want  of  jurisdiction 
appears  on  the  record,  and  the  court  are  bound  to  reverse. 

In  a  matter  before  justices  of  the  peace,  the  court,  in  examining 
the  proceeding,  may  call  in  the  aid  of  affidavits  to  see  whether  they 
have  exceeded  their  jurisdiction.  Bringenhqfer  v.  Martin,  3 
Yeates,  479.  But  an  award  of  arbitrators  is  different  from  a  trial 
in  court ;  and  where  the  award  is  not  for  more  than  100  dollars}  in 
the  District  Court,  in  an  action  founded  on  contract,  it  is  different 
from  a  judgment  of  a  justice  of  the  peace,  and  there  it  is  difficult  to 
ascertain  what  was  the  real  sum  in  controversy,  and  what  reduced, 
by  defalcation.  The  case  does  not  call  for  any  opinion,  and  it 
would  be  improper  to  anticipate,  but  there  certainly  is  a  distinction. 
See  7  C ranch,  276. 

I  had  some  struggle  in  my  mind,  in  an  endeavour  to  support  this 
judgment,  so  far  as  respected  the  sum  recovered,  without  costs,  bv 


302  SUPREME  COURT  [Philadelphia, 

(Kline  v.  Wood.) 

considering,  that  the  District  Court  stood  in  the  same  state  as  the 
Court  of  Common   Pleas  originally  did  in  this  respect.     But  the 
prohibition  is  found  to  be   so  strongly  expressed,  that   it  would  be 
legislating,  and  not  judging,  so  to  decide. 
The  judgment  must  therefore,  bereversed. 

Judgment  reversed. 


[Philadelphia,  April,  7,  1823.] 

M'CALL  against  LENOX. 

If  a  bond  and  warrant  of  attorney  are  given  accompanying  a  mortgage,  a  sale  of  the 
land  under  a.Jieri  facias  and  venditioni  exponas  issued  on  the  judgment  entered  up 
under  the  warrant,  avoids  a  lease  made  by  the  mortgagor,  after  the  mortgage  but 
before  the  entry  of  the  judgment  on  the  warrant. 

This  was  an  amicable  action,  instituted  for  the  purpose  of  deciding 
whether  the  defendant  was  entitled  to  the  possession  of  a  house 
at  the  north-west  corner  of  Chesnut  and  Tenth  streets,  in  the  city 
of  Philadelphia,  purchased  by  him  at  sheriff's  sale,  from  the  day 
on  which  he  received  the  sheriff's  deed  ;  or  whether  the  plaintiff 
was  entitled  to  the  possession,  by  virtue  of  a  lease  prior  to  the 
judgment  under  which  the  defendant  purchased.  The  case  was  as 
follows :  Peter  L.  Berry,  being  seised  of  the  house  in  fee,  mort- 
gaged it  to  Thomas  Armstrong,  by  deed,  dated  the  12th  September, 
1813.  Berry  retained  the  possession,  and  afterwards,  on  the  4th 
February,  1814,  made  a  second  mortgage,  accompanied  with  a 
judgment  bond,  to  Miles  H  Hughes,  who  assigned  this  mortgage 
and  bond  to  Daniel  Mann.  On  the  5th  of  May,  1814,  Berry  made 
a  lease  to  the  plaintiff,  who  was  then  in  possession  under  a  former 
lease  from  Berry,  for  the  term  of  two  years,  to  commence  on  the 
1st  May,  1815,  on  which  the  plaintiff  paid  all  the  rent  in  advance. 
On  the  4th  February,  1815,  Daniel  Mann,  assignee  of  Hughes,  entered 
judgment  against  Berry  on  the  bond  which  accompanied  his  mort- 
gage, and  by  virtue  of  a  fieri  facias  and  venditioni  exponas  .issued  on 
this  judgment,  the  mortgaged  premises  were  taken  in  execution,  and 
sold  to  the  defendant,  who  received  a  deed  from  the  sheriff,  dated 
3d  November,  1815.  The  purchase  money  was  applied,  first  to  the 
payment  of  Armstrong's  mortgage,  and  afterwards,  to  the  payment 
of  Mann's,  as  far  as  it  wTould  go,  but  was  not  sufficient  to  pay  the 
whole. 

Rawle,  Jun.  and  Rawle,  for  the  plaintiff,  contended,  that  the  lease 
to  the  plaintiff,  made  by  the  mortgagor,  between  the  date  of  the 
mortgage,  and  of  the  judgment  on  which  the  property  was  sold, 
was  valid  against  the  defendant.  As  it  was  made  prior  to  the  entry 
of  the  judgment,  it  is  clear  that  it  is  good  against  the  judgment 
alone;  but  the  attempt  of  the  defendant  is,  to  bring  in  the  mortgage 
in  aid  of  the  judgment,  and  thereby  to  defeat  the  lease.     This  cannot 


March,  1823.]  OF  PENNSYLVANIA.  303 

(M'Call  v.  Lenox.) 

be  done,  where  the  mortgagee,  who  has  his  election  to  proceed  on  the 
mortgage  by  scire  facias,  or  ejectment,  or  on  the  bond  by  fieri  fa- 
cias, chose  to  adopt  the  latter  course.  In  the  latter  course  of  pro- 
ceeding, the  sheriff,  on  the  fieri  facias  and  venditioni,  sells  mere- 
ly the  right  which  the  obligor  had,  and  nothing  more  or  less.  All 
that  he  had  was  merely  a  reversion  after  the  lease,  subject  to  the 
mortgage  :  or,  in  other  words,  an  equity  of  redemption ;  and  this 
was  all  the  defendant  purchased.  Does  the  circumstance  of  the 
bond  and  warrant  accompanying  the  mortgage,  make  any  differ- 
ence? They  are  not  inseparable,  but  are  distinct  securities,  and  the 
remedies  upon  them  are  distinct.  On  the  bond  and  warrant,  judg- 
ment may  be  entered  in  another  county  :  or  if  in  the  same  county 
where  the  land  lies,  other  property,  real  or  personal,  may  be  levied 
on,  or  the  person  of  the  defendant  taken  by  a  ca.  sa.  If  the  party 
who  has  distinct  remedies  elects  one,  he  is  confined  to  that,  and 
adopts  it  with  all  its  legal  consequences.  He  is  considered  as  waiv- 
ing the  other.  The  defendant  when  he  purchased  had  full  know- 
ledge of  all  these  circumstances,  and  has  no  equitable  claim.  The 
mortgagee  by  proceeding  under  the  judgment  has  adopted  and  con- 
firmed the  lease.  The  sale  on  the  judgment  does  not  affect  inter- 
vening incumbrances.  The  mortgage  remains  a  security,  on  which 
the  mortgagee  may  still  proceed. 

/.  Sergeant,  contra.  In  this  case  the  mortgage  was  on  record 
before  the  lease  was  made,  and  the  plaintiff  took  the  lease  in  the 
face  of  the  mortgage,  and  with  knowledge  that  his  possession  was 
liable  to  be  interrupted  by  the  mortgage.  The  objection  is  a  strictly 
legal  one,  in  which  legal  forms  are  set  up  in  opposition  to  the  equity 
of  the  mortgagee.  It  cannot,  however,  be  doubted,  that  a  mortgage 
with  the  bond  it  recites,  make  but  one  security :  and  if  the  bond  is 
assigned,  it  carries  the  mortgage  along  with  it.  If  the  mortgaged 
premises  are  sold  on  the  bond,  they  are  discharged  from  the  mort- 
gage, and  the  purchaser  stands  as  the  assignee  of  the  mortgage,  and 
possesses  all  the  rights  held  under  it.  It  is  a  pledge  which  accom- 
panies the  judgment  and  passes  with  it.  At  law  a  mortgage  is  a 
conveyance  of  the  real  estate  ;  the  mortgagee  may  support  eject- 
ment, immediately  on  the  default  of  the  mortgagor.  Whatever 
modification  this  principle  has  received  has  been  in  equity :  but 
equity  will  never  interfere  to  deprive  the  mortgagee  of  his  secu- 
rity, nor  can  the  mortgagor,  by  any  act  of  his,  affect  the  security 
he  has  pledged.  The  equity  of  the  mortgagee  is,  to  receive  his 
whole  debt  out  of  the  property.  The  sale  was  not  of  the  equity  of 
redemption  in  this  case,  but  of  the  land  itself.  In  Bantleon  v. 
Smith,  2  Binn.  146,  the  lien  for  arrears  of  ground  rent  was  held 
to  remain,  though  the  ground  landlord  had  recovered  judgment  in 
an  action  of  covenant  for  the  arrears,  and  it  was  held  to  be  entitled 
to  a  preference  over  judgments  prior  to  the  judgment  recovered  in 
the  suit,  which  in  principle  is  the  same  case  as  the  present.  More- 
over it  is  there  distinctly  admitted,  that  a  mortgage  remains  in  full 


304  SUPREME  COURT  [Philadelphia, 

(M-Call  v.  Lenox.) 

force,  after  a  judgment  obtained  on  the  accompanying  bond.  To 
the  same  effect  is  Gordon  v.  Correy,  5  Binn.  552,  in  which  it  was 
determined,  that  a  ground  landlord  does  not  lose  his  lien  for  the 
rent  due,  by  taking  a  bond  and  warrant  for  the  arrears,  and  enter- 
ing up  judgment. 

Reply.  The  cases  of  Bantleon  v.  Smith,  and  Gordon  v.  Correy, 
are  different  from  this  case.  The  question  in  them  was,  whether 
the  proceeds  of  sale  might  not  be  applied  to  pay  an  unextinguished 
lien.  The  question  here  is,  not  concerning  lien,  but  as  to  the  inte- 
rest which  passed  by  the  sheriff's  sale. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  The  plaintiff  contends,  that  no  proceedings 
under  this  judgment  can  affect  his  lease,  which  was  of  a  prior  date. 
The  question  is,  whether  the  judgment  on  Berry'' s  bond,  is  so  con- 
nected with  the  mortgage,  as  to  give  the  defendant  the  advantage 
of  the  mortgage.  If  it  is,  the  title  of  the  defendant  is  prior  to 
that  of  the  plaintiff.  It  is  certain,  that  the  bond  and  mortgage 
are  securities  for  one  and  the  same  debt ;  for  which  the  mortgagee 
has  three  remedies.  He  may  proceed  by  way  of  ejectment,  to  re- 
cover the  possession  of  the  premises,  or  he  may  have  a  Scire  Facias 
on  the  mortgage,  or  an  action  of  debt  on  the  bond,  in  which  two 
last  cases,  the  debt  may  be  recovered  by  a  sale  of  the  premises. 
But  there  is  this  difference  between  a  judgment  on  the  Sci.  Fa. 
and  on  the  bond,  that  in  the  former,  the  execution  is  restricted  to 
the  subject  mortgaged ;  but  in  the  latter,  any  other  property  of 
the  mortgagor  may  be  levied  on,  or  his  person  may  be  taken  in 
execution.  The  mortgagee  may  pursue,  either,  or  all  of  the  reme- 
dies which  I  have  mentioned,  until  he  obtains  satisfaction  for  his 
debt.  But  he  cannot  sell  the  land  twice.  In  the  case  before  us, 
therefore,  the  house  having  been  sold  under  the  judgment  on  the 
bond,  the  mortgagee  could  not  make  a  second  sale  by  Levari  Fa- 
cias, under  a  Sci.  Fa.  on  the  mortgage.  As  the  plaintiff  took  his 
lease,  with  legal  notice  of  a  prior  mortgage,  it  is  clear,  that  the 
lease  must  have  given  way  to  the  mortgage,  had  the  proceeding 
been  by  way  of  Scire  Facias  or  ejectment.  So  that  if  the  plain- 
tiff's title  now  prevails,  it  must  be,  because  the  mortgagee  lost  his 
advantage,  by  the  form  of  action  which  he  pursued.  In  order  to 
decide  this  question,  we  must  consider  the  nature  of  a  mortgage. 
It  is,  in  substance,  a  security  for  a  debt,  though  in  form,  a  convey- 
ance of  land.  An  assignment  of  the  debt,  carries  with  it  the  be- 
nefit of  the  mortgage,  although  the  mortgage  be  not  specifically 
assigned.  From  the  moment  the  debt  is  assigned,  the  mortgagee 
becomes  the  trustee  of  the  assignee.  So,  when  the  mortgagor  dies, 
without  having  made  an  assignment,  his  heir  becomes  a  trustee  for 
his  executor  or  administrator,  and  if  the  executor  or  administrator 
make  an  assignment  of  the  mortgage,  the  assignee  takes  the  equi- 
table interest  therein,  and  may  support  an  ejectment  in  his  own 


March,  1823.]  OF  PENNSYLVANIA.  305 

(M'Call  v.  Lenox.) 

name.     This  was  expressly  decided,  in  the  lessee  of  Simpson  v. 
Ammon,  1   Binn.  175,  and  it  appears  to  me,  that  the  principle  es- 
tablished in  that  case,  must  govern  the  case  before  us.     Daniel 
Mann  had  the  whole  interest,  both  in  law  and  equity,  in  the  mort- 
gage given  by  Berry  to  Hughes ;  and  having  this  interest,  he  le- 
vied on  the  mortgaged  premises,  and  sold  them,  by  means  of  the 
Sheriff     After  this  sale,  if  Mann  retained  any  right  to  these  pre- 
mises, he  must  be  considered  as  a  trustee  for  the  purchaser  at  the 
Sheriffs  sale.     Then,  upon  the  principle  of  Simpson  v.  Ammon, 
the  defendant  being  cestui  que  trust,  might  maintain  an  ejectment 
against  the  plaintiff  in  his  own  name,  if  he  refused  to  give  up  the 
possession.     But  it  may  be  objected,  that  after  having  proceeded 
to  a  sale,  under  a  judgment  on  the  bond,  the  mortgagee  can  have 
no  further  remedy  by  proceeding  on  the  mortgage.     To  this  I  can- 
not assent.     I  mentioned  before,  that  the  mortgagee  has  a  triple  re- 
medy, which  he  may  pursue  in  a  triple  form,  until  his  debt  be  sa- 
tisfied.    This  is  justice,  this  is  equity.     The  equity  of  the  mort- 
gagor is,  to  have  restitution  of  the  land,  upon  payment  of  the  debt. 
And  the  equity  of  the  mortgagee  is,  to  hold  the  land,  until  this 
debt  be  satisfied.     Now  Mrs.  M'Call  can  have  no  better  title  in 
law,  or  equity,  than  Berry  the  mortgagor,  under  whom  she  claims ; 
for  she  had  full  notice,  (I  mean  legal  notice,)  of  the  mortgage.   Sup- 
pose that  Mann,  (the  assignor  of  the  mortgage,)  had  been  the  pur- 
chaser, at  the  Sheriff's  sale  himself,  and  Mrs.  M'Call  had  refused 
to  give  him  possession,  standing  on  her  lease,  which  was  prior  to  his 
judgment,  what  should  prevent  him  from  maintaining  an  ejectment 
on  the  mortgage  ?     If  the  plaintiff  rests  her  defence  on  the  forms 
of  law,  and  contends  that  a  judgment  on  the  bond  is  in  no  manner 
to  be  considered  as  a  proceeding  on  the  mortgage,  she  must  take 
the  consequences  of  that  principle,  and  can  make  no  defence  against 
an  ejectment  on  the  mortgage.     If  she  could  not  defend  herself 
against  Mann,  neither  could  she  against  the  defendant,  who,  I  have 
shown  before,  stands  in  the  place  of  Mann.     That    Mann  might 
have  supported  an  ejectment,  will  appear,  by  the  decision  of  this 
Court,  in  the  case  of  Bantleon  v.  Smith,  2  Binn.  146.     There,  an 
action  of  covenant  was  brought  on  a  ground  rent  deed,  judgment 
obtained,  and  the  land  out  of  which  the  rent  issued,  sold.     The 
proceeds  of  sale  were  brought  into  court,  and  the  question  was, 
who  should  have  them.     The  ground  landlord,  who  had  obtained 
judgment  in  the  action  of  covenant,  claimed  them,  but  was  opposed 
by  creditors  of  the  defendant,  who  had  obtained  prior  judgments. 
The  court  held,  that  the  plaintiff  was  entitled  to  the  money  be- 
cause his  lien  on  the  land,  and  his  right  to  distrain  for  the  rent,  re- 
mained, although  he  had  obtained  judgment  in  an  action  of  cove- 
nant for  the  same  rent.     And  that  case  was  compared  by  the  court, 
to  the  case  of  a  mortgage  and  bond,  and  it  was  said,  that  an  eject- 
ment would  lie  by  the  mortgagee,  after  judgment  on  the  bond,  pro- 
vided the  debt  was  not  paid.     I  have  supposed  in  the  course  of  my 
vol.  ix.  2  Q 


SOfi  SUPREME  COURT  [Philadelphia, 

(M'Cal!  v.  Lenox.) 

argument,  that  Mann  had  the  legal  estate  in  him.  The  case  is 
not  strictly  so,  though  for  all  the  purposes  of  the  argument,  it  may- 
be said  to  be  so.  The  legal  estate  was,  in  fact,  in  Tho?nas  Arm- 
strong, the  first  mortgagee.  But  the  money  arising  from  the  de- 
fendant's purchase,  having  been  applied  in  the  first  place,  in  satis- 
faction of  the  whole  of  Armstrong's  debt,  his  mortgage  was  ex- 
tinguished, and  the  second  mortgage  was  the  only  one  which  held 
the  land.  But  if  any  legal  right  had  remained  in  Armstrong  af- 
ter payment  of  his  debt,  he  would  have  held  as  a  trustee,  and  been 
compellable  in  equity,  to  transfer  the  legal  estate  to  him  by  whom 
his  debt  had  been  paid;  or,  which  would  have  answered  the  same 
purpose,  he  might  have  been  compelled,  under  our  act  of  assembly, 
to  enter  satisfaction  on  record,  which  would  have  been  equal  to  a 
re-conveyance.  I  have  said  enough  to  show,  that  the  defendant's 
title  to  the  possession,  was  better  than  that  of  the  plaintiff.  But  I 
cannot  help  adding,  that  the  execution  under  which  the  house  was 
sold,  having  been  applied  immediately  to  the  subject  of  the  mort- 
gage, the  justice  of  the  case  is  most  effectually  attained,  by  consi- 
dering it  as  if  the  sale  had  been  by  virtue  of  a  proceeding  by  scire 
facias  on  the  mortgage.  This  mode  of  considering  it,  accords 
best  too,  with  an  ancient  practice  in  this  state  to  sell  the  land  for 
its  full  value,  without  regard  to  liens,  and  apply  the  proceeds  of 
sale  to  the  payment  of  the  several  liens  according  to  their  priority 
as  was  done  in  this  case.  This  is  undoubtedly  the  way  by  which 
the  land  may  be  sold  to  the  greatest  advantage,  although  I  am  sensi- 
ble that  it  may  be  productive  of  difficult  questions,  with  respect  to 
lien  creditors,  prior  to  the  judgment  under  which  the  land  is  sold. 
Some  questions  of  that  kind  are  now  depending,  and  therefore,  I 
desire  it  to  be  understood,  that  I  give  no  opinion,  how  far  the  rights 
of  prior  creditors  by  mortgage,  or  judgment,  can  be  affected  by  a 
sale  under  a  subsequent  judgment.  My  opinion  upon  the  whole, 
is  that  the  defendant  was  entitled  to  the  possession,  from  the  time  he 
received  a  deed  from  the  sheriff,  and  therefore,  judgment  should  be 
entered  in  his  favour. 

Gibson,  J.  The  essential  circumstances  of  the  case  are  these : 
a  creditor  takes  a  mortgage  and  a  bond  with  warrant  to  confess 
judgment.  The  mortgage  is  recorded,  but  judgment  is  not  en- 
tered up,  on  the  bond,  until  a  year  afterwards  ;  and  between  the 
recording  of  the  mortgage,  and  the  entering  up  judgment  on  the 
bond,  the  mortgagor  makes  a  lease  for  years.  An  execution  issues 
on  the  judgment  and  the  mortgaged  premises  are  levied,  condemn- 
ed, and  sold,  no  scire  facias  having  been  issued  on  the  mortgage 
which  is  then  due.  The  lease  is  unexpired,  and  the  question  is, 
whether  the  lessee  is  entitled  to  hold,  against  the  purchaser,  during 
the  residue  of  the  term. 

It  is  argued,  that  the  bond  and  mortgage  being  parts  of  the  same 
transaction,  are  in  contemplation  of  law,  one  instrument,  and  form 
but  one  security ;  and  consequently,  that  the  lien  of  the  judgment 


March,  1823.]  OF  PENNSYLVANIA.  307 

(M'Cill  v.  Lenox.) 

on  the  bond  must  relate  to  the  date  of  the  mortgage.     Far  other- 
wise.    As  to  third  persons,  I  admit  that  a  mortgagor  in  possession, 
is  to  be  considered  the  legal  owner  of  the  land  :  but  as  between  the 
immediate  parties,  a  mortgage  is  a  conveyance  of  the  legal  title, 
leaving  in  the   mortgagor  nothing  but  the  benefit  of  a  condition,  or 
a  right  to  have  the  legal  estate  again,  by  paying  the  debt  for  which 
it  was  hypothecated,  at  or  before  the  day  assigned  for  that  purpose  ; 
or  in  case  of  failure  at  the  day,  still  leaving  him.  in  equity  to  re- 
deem, by  payment  within  a  reasonable  time  afterwards.     The  mort- 
gage, therefore,  operates  only  on  the  legal  estate,  and  it  is  that  which' 
is  sold,  where  the  proceeding  is  on  the  mortgage  ;  the  judgment  in 
which,  is  equivalent  to  a  decree  of  foreclosure,  and  orders  of  sale 
in  chancery,  the  mortgagor  being  entitled  to  the  surplus  purchase 
money,  if  any,  after  payment  of  the  debt.     On  the  other  hand,  a 
judgment  on  a  bond,  given  for  the  same  debt,  operates  only  on  the 
interest  that  was  in  the  obligor  at  the  time  the  judgment  was  enter- 
ed ;  namely,  his  legal  right  to  redeem  at  or  before  the  day  of  pay- 
ment, ajad  his  equity  of  redemption  afterwards  :  and  the  obligee  can, 
strictly,  speaking  sell  no  more.     The   mortgagee    may,  however, 
waive  the  benefit  of  his  mortgage  as  a  security ;  and  where  a  pur- 
chaser under  the  judgment  on  the  bond,  is  induced  by  his  acts  to  be- 
lieve that  he  does  so,  and  pays  a  full  price  for  the  estate,  the  mort- 
gagee will  not  be  permitted  to  disturb  him  for  the  balance  due  on 
the  mortgage :  for  in  such  case,  a  chancellor  would  enjoin  him  ;  and 
as  to  third  persons,  the  purchaser  standing  in  the  place  of  the  mort- 
gagor, would  be  considered  as  having  the  legal  title.     With  us,  the" 
practice  has  been  universal,  where  the  land  has  been  pursued  on 
the  bond,  to  sell  without  any  reservation  of  the  lien  of  the  mort- 
gage ;  and  the  purchaser  is,  therefore,  always  considered  as  having 
acquired  the  legal,  as  well  as  the  equitable  estate.     But  it  is  clear 
beyond  a  doubt,  that  the  mortgagee  may,  by  express  reservation, 
sell  the  interest  bound  by  the  judgment,  subject  to  his  own  mort- 
gage ;   and  where  both  parties  proceed  on  the  basis  of  such  reser- 
vation, his  security  will  not  be  lessened  by  the  sale.     In  this  view, 
I,  with  deference,  take  Jackson  v.  Hull,  10  JoJms.  481,  to  be  clear 
and  uncontrovertible  law.     The  purchaser  under  a  judgment  on  the 
bond,  then,  acquires,  where  the  land  is  sold  subject  to  the  mort- 
gage, nothing  but  the  equity  of  redemption   of  the  mortgagor,  in 
whose  place  he  stands  :  and  where  the  lien  of  the  mortgage  is  not 
reserved,  he  acquires  all  the  interest  which  the  mortgagor  would 
have  had  at  the  time  of  the  judgment  in  case  the  mortgage  had 
never  been  given.     In  either  view,  therefore,  if  I  am  correct  in  my 
premises,  there  is  a  material  difference,  as  to  the  subject  matter 
of  the  security  of  the  bond,  and  that  of  the  mortgage :  and  one  which 
ought  to  preclude  the  purchaser  from  affecting  an  interest  created 
on  the  land  before  the  date  of  the  judgment  on  whrch  he  purchased. 
But  there  are  other  differences  which  forcibly  bear  on  the  ques- 
tion before  us.     Where  bonds  are  given  along  with  a  mortgage, 


308  SUPREME  COURT  [Philadelphia, 

(M'Call  v.  Lenox.) 

they  are  usually  for  separate  instalments  which  are  to  fall  due  at 
different  times,  before  the  moitgage  ;  and  these  are  recoverable  re- 
spectively, as  they  become  due.  On  the  other  hand  the  mortgage 
is  a  security  for  the  whole  debt,  and  cannot  be  put  in  suit,  till  a 
year  and  a  day  after  the  debt  has  become  due.  These  securities 
are,  therefore,  as  independent  of  each  other,  as  the  contract  of  the 
parties  can  make  them  ;  each  being  attended  with  consequences  pe- 
culiar to  itself.  They  cause  distinct  liens,  the  one  specific,  arising 
from  the  contract  of  the  parties,  and  being  in  the  nature  of  a  pledge  ; 
the  other  general  arising  from  the  judgment  of  a  court  of  record, 
and  being  incidental  to  the  contract :  and  these  again  afford  different 
remedies,  which,  as  the  one  or  the  other  is  pursued,  have  peculiar 
effects  on  the  rights  to  be  decided.  Thus,  if  the  mortgage  is  re- 
sorted to,  the  mortgagee  may  maintain  an  ejectment ;  or  he  may, 
after  a  year  and  a  day  from  the  time  the  mortgage  became  due, 
proceed  to  a  sale  of  the  land  by  scire  facias  ;  but  then,  in  recom- 
pense of  the  delay,  he  may  sell  without  the  condemnation  of  an 
inquest.  On  the  other  hand,  if  he  proceeds  as  a  judgmentrfcreditor 
on  the  bond,  he  may  instantly  have  execution  of  the  mortgaged 
premises  to  the  extent  of  the  equity  of  redemption,  of  the  debtor's 
other  land,  of  his  chattels,  or  of  his  person.  Either  of  these  courses 
he  may  pursue ;  and  either  has  its  advantages,  and  its  disadvan- 
tages. But  he  cannot  pursue  a  middle  course,  and  have  the  advan- 
tages of  both  without  the  disadvantages  of  either.  If,  therefore, 
he  has  kept  his  bond  in  his  pocket,  he  cannot  enter  it  up  at  any  time 
he  pleases,  and  sell  the  mortgaged  premises,  before  the  mortgage 
is  due,  and  at  the  same  time,  carry  back  the  lien  of  the  Judgment 
to  the  date  of  the  mortgage  :  for  if  he  can  do  it  after  the  mortgage 
is  due,  there  is  nothing  to  prevent  him  from  doing  it  before.  He 
might  as  well  claim  a  right  to  sell  without  a  condemnation,  on  the 
ground  of  giving  effect  in  another  shape,  to  a  right  secured  to  him 
under  the  mortgage  ;  and  this  no  one  will  pretend  he  could  do.  But 
even  if  the  bond  and  mortgage  were  to  be  taken  as  one  security, 
the  consequence  would  be  the  same ;  for  in  a  great  variety  of  cases 
where  a  plaintiff  has  his  choice  of  a  plurality  of  remedies,  each 
produces  a  peculiar  result  on  the  nature  and  the  extent  of  the  com- 
pensation recovered.  In  an  action  of  debt  for  a  penalty  to  secure 
the  performance  of  a  covenant,  the  amount  of  compensation  is 
bounded  by  the  extent  of  the  penalty  ;  whereas,  in  an  action  directly 
on  the  covenant,  damages  may  be  recovered  to  any  amount. 

On  what  ground  then  can  a  purchaser  under  the  judgment,  insist 
that  its  lien  commenced  before  the  judgment  was  rendered  ?  What 
ever  may  be  the  rights  of  a  mortgage,  it  is  certain  that  a  lease 
by  a  mortgagor  in  possession,  is  good  as  to  third  persons ;  and 
that  it  can  be  avoided  only  by  the  mortgagee  in  an  action  of  eject- 
ment, or  a  scire  facias  on  the  mortgage.  But  he  may  if  he  please 
affirm  the  lease  ;  and  he  does  affirm  it  by  proceeding  on  a  judgment 
*-vhich  is  subsequent  to  it.     That  is  his  own  concern  and  no  one  else 


March,  1823.]  OF  PENNSYLVANIA.  309 

(M'Call  v.  Lends.) 

has  a  right  to  interfere.  He  may  pursue  either  security  or  both ; 
and  if  he  can  effect  a  sale  on  the  judgment  for  a  sum  sufficient  to 
satisfy  his  debt,  it  is  all  he  wants :  if  he  cannot,  he  will  of  course 
pursue  the  more  productive  security.  Now  what  can  a  judgment 
creditor,  in  that  particular  capacity,  sell  ?  Precisely  that  interest 
which  the  defendant,  in  his  capacity  of  debtor  by  judgment,  had  in 
the  land  when  the  judgment  was  rendered.  But  here  the  debtor 
had  parted  with  a  portion  of  his  interest,  before  the  judgment  was 
entered  up.  Suppose  that,  instead  of  making  a  lease  for  years  of 
the  whole,  he  had  aliened  a  part  of  the  land  in  fee  :  would  such 
part  be  affected  by  the  judgment  and  sheriff's  sale;  or  could  the 
purchaser  under  the  judgment  obtain  possession  of  it,  by  an  inqui- 
sition before  two  justices  ?  Certainly  not :  because  the  creditor  did 
not  sell  it,  and  because  the  alienee  could  safely  swear,  particularly 
since  the  act  of  the  14th  of  March,  1814,  that  he  held,  by  title 
derived  from  the  debtor,  antecedently  to  the  judgment.  That 
would  stop  the  proceedings  before  the  justices,  and  if  made  out  on 
the  appeal  to  the  Common  Pleas,  would  of  course  furnish  an  avail- 
able defence :  and  clearly  the  same  may  be  affirmed  of  an  estate  for 
years. 

It  is  however  said  that  the  purchaser  acquires  all  the  rights  which 
the  debtor  had,  and  that  chancery  would  therefore  compel  an  as- 
signment of  the  mortagage :  so  that  he  would,  at  least  in  equity,  be 
entitled  to  the  possession  against  the  lessee  or  alienee.  Did  he  sti- 
pulate for  an  assignment  ?  He  acquires  all  the  rights  which  the  cre- 
ditor had,  in  his  capacity  of  judgment  creditor,  and  none  beside. 
Chancery  will  order  a  security  to  be  assigned  in  favour  of  a  surety 
who  has  paid  it ;  or  if  a  creditor  has  a  lien  on  two  funds,  and  an- 
other creditor  has  a  lien  of  a  younger  date,  on  but  one  of  them,  and 
tee  prior  creditor  elects  to  take  his  satisfaction  out  of  the  fund  on 
which  the  younger  creditor  has  a  lien,  the  latter  will  be  entitled  to 
have  him  thrown  upon  the  other  fund  ;  or  to  have  the  lien  assigned 
to  him,  that  he  may  have  the  benefit  of  all  the  aid  it  can  afford. 
These  are  the  only  cases  which  I  at  present  recollect  of  the  assignment 
of  securities  by  order  of  a  Court  of  Chancery ;  and  the  difference  be- 
tween them  and  the  case  before  us,  is  at  once  apparent.  There  is, 
here,  no  question  of  suretyship,  or  of  liability  of  different  funds  to 
different  creditors,  but  there  is  one  fund  liable  to  one  debt,  although 
on  different  securities.  This  doctrine  of  substitution  is  said  to  be 
founded  in  mere  equity  and  benevolence.  Now  a  creditor  having 
two  securities,  either  of  which  is  sufficient  to  produce  satisfaction, 
is  not  bound,  nor  ought  he  in  conscience  to  proceed  on  the  larger,- 
and  sell  more  than  is  necessary.  But  he  proceeds  on  the  smaller  and 
obtains  satisfaction — how  can  the  purchaser  who  is  supposed  to 
know  exactly  what  he  buys,  claim  any  thing  beyond  what  the  cre- 
ditor professed  to  sell?  Suppose  the  case  of  an  unrecorded  mort- 
gage which  would  nevertheless  begood  against  the  mortgagor  and 
those  claiming  under  him  :  the  purchaser  under  the  judgment  being 


310  SUPREME  COURT  [Philadelphia, 

(M'Call  v.  Lenox.) 

ignorant  of  its  existence,  could  not  have  contemplated  having  the 
benefit  of  it  when  he  purchased  ;  yet  he  would  obtain  it  by  the  prin- 
ciple insisted  on.  The  presumption  is,  that  if  the  estate  of  the  debtor 
had  been  sold  to  the  extent  of  the  larger  security,  the  purchaser 
would  have  had  to  pay  more  for  it ;  and  thus  there  would  have  been 
a  surplus  remaining  to  the  debtor;  to  the  benefit  of  which  the  pur- 
chaser would  be  entitled  on  no  principle  of  equity  or  conscience. 
This  consideration  is  of  substantial  importance  to  the  debtor  ;  and 
chancery  in  compelling  an  assignment  of  the  mortgage  would  take 
from  him  what  is  clearly  his  property  ;  and  in  favour  of  a  person 
who  had  not  paid  a  farthing  for  it.  The  purchaser  therefore  has  no 
colour  of  equity.  A  mortgagee  has  an  interest  in  the  land  only  to 
the  amount  of  his  debt,  and  when  that  is  satisfied  his  interest  ceases. 
If  he  has  a  distinct  security  of  less  extent,  he  can  sell  in  pursuance 
of  it,  only  what  it  covers.  If  he  means  to  sell  more,  he  ought 
in  fairness  to  the  debtor,  to  sell  on  the  larger  security,  so  that  bid- 
ders may  know  what  they  buy  and  regulate  their  bidding  according- 
ly. I  therefore  can  discover  no  equity,  by  which  a  purchaser  un- 
der the  smaller  security  is  entitled  to  say  he  obtained  an  interest  in 
what  there  is  no  reason  to  suppose  the  creditor  intended  to  sell. 

It  will  be  preceived  that  I  have  treated  this  last  question  as  if  the 
proceeds  of  the  sale  had  satisfied  the  mortagage.  It  however  appears 
that  the  fact  is  not  so  ;  but  this  circumstance  will  produce  no  diffe- 
rence in  the  result,  because  even  conceding- that  the  sale  was  not  sub- 
ject to  the  mortgagee,  that  would  preclude  the  mortgage  from  affect- 
ing only  the  interest  which  passed  by  the  sale  and  the  sheriff's  deed, 
but  not  from  affecting  the  interest  of  the  mortgagor  or  those  claiming 
under  him. 

It  must  be  obvious  that  the  question  ought  not  to  be  affected  by 
any  consideration  arising  out  of  the  payment  of  the  purchase  mo- 
ney. No  one  will  pretend  that  proceeding  against  the  land  on  the 
bond  releases  it  from  the  lien  of  the  mortgage;  which  is  amply  suf- 
ficient for  the  protection  of  the  mortgagee  :  for  if  it  did,  that  would 
very  fairly  dispose  of  the  purchaser's  claim  to  an  interest  under  the 
mortgage.  But  the  purchase  money  although  collected  on  the  bond 
will  be  paid  on  the  mortgage  as  an  existing  lien,  where  it  happens 
to  be  the  oldest,  just  as  if  the  bond  and  mortgage  had  been  for  dis- 
tinct debts  due  to  different  persons. 

With  respect  to  the  argument  that  the  rent,  although  payable  in 
advance,  had  not  been  actually  paid  at  the  time  of  the  sale,  and  that 
Mrs.  Ml Call  might  therefore  have  rescinded  her  lease,  it  is  sufficient 
to  observe  that  the  lease  may  have  been  a  valuable  one,  and  she 
was  not  bound  to  give  up  the  bargain  because  she  had  not  actually  exe- 
cuted her  part  of  the  contract.  But  at  all  events  if  she  had  in  other 
respects,  a  vested  interest,  her  landlord  was  not  bound  to  accept  of 
a  surrender,  and  his  interest  is  to  be  taken  into  consideration  as  well 
as  hers. 

The  whole  will,  I  think,  be  found  to  rest  on  this  principle.     The 


March,  1823.]  OF  PENNSYLVANIA.  311 

(M'Call  v.  Lenox.) 

purchaser  is  supposed  to  buy  the  debtor's  interest  in  the  land,  and 
not  any  security  which  was  a  lien  on  it ;  and  on  this  ground  I  am 
of  opinion  that  Major  Lenox  was  not  entitled  to  possession  from 
the  date  of  the  sheriff's  deed,  but  that  Mrs.  MCall  was  entitled  to 
hold  for  the  residue  of  her  term. 

Duncan,  J.  This  comes  before  the  court  as  a  special  verdict, 
on  which  it  is  agreed  judgment  shall  be  entered  as  the  court  de- 
cided the  right  of  possession  in  November,  1815,  when  Major  Le- 
nox obtained  his  sheriff's  deed.  The  validity  of  the  lease  of  Mrs. 
M'Call,  on  account  of  its  commencement  in  futuro,  is  not  ques- 
tioned, though  certainly,  open  to  animadversion,  on  the  dangers 
arising  from  such  a  lease,  with  all  the  rent  paid  in  advance;  and  if 
it  embraced  any  period  beyond  three  years  from  the  time  of  its 
execution,  not  being  recorded,  I  would  very  much  doubt,  whether 
it  could  prevail  against  a  subsequent  purchaser  or  mortgagee  with- 
out actual  notice. 

This  question  which  now  calls  for  our  judgment,  is  one  of  gene- 
ral importance,  and  without  any  particular  detail  of  dates  is,  whe- 
ther a  purchaser  of  lands,  sold  on  a  judgment  entered  on  a  bond 
subsequent  to  the  execution  of  a  mortgage,  to  secure  its  payment, 
shall  prevail  against  a  lessee  of  the  same  land,  who  has  obtained  a 
lease  mesne  between  the  execution  of  the  mortgage  and  entry  of 
the  judgment,  where  the  sale  is  made  for  the  fee  simple  value  of 
the  lands,  and  the  money  applied  to  the  discharge  of  that  mortgage 
and  a  prior  mortgage. 

What  is  the  mortgage  ?  It  is  a  pledge,  and  more,  for  it  is  an  ab- 
solute pledge,  to  become  an  absolute  interest,  if  not  redeemed  at  a 
certain  time.  The  possession  of  the  mortgagor  is  the  possession  of 
the  mortgagee,  and  as  to  the  inheritance  they  have  but  one  title 
between  them.  The  mortgagor  has  no  power  of  making  leases  to 
bind  the  mortgagee.  He  cannot  against  the  will  of  the  mortgagee, 
do  any  act  to  dis-siese  him.  Cro.  Jac.  660.  Cro.  Car.  304.  3  Lev. 
388,  and  Skinner,  424.  And  the  reason  is,  because  in  the  eye  of 
the  law,  so  long  as  he  receives  his  interest,  he  is  virtually  in  pos- 
session. When  the  day  of  payment  is  past,  in  England  the  mort- 
gagee has  the  right  to  the  actual  possession  whenever  he  pleases  : 
in  this  state,  one  year  after  the  last  day  of  payment.  He  may 
bring  his  ejectment  at  any  moment  that  he  will ;  he  is  entitled  to  the 
estate  with  all  crops  growing :  he  is  also  entitled  to  the  rents  which 
have  become  due  since  the  mortgage.  And  where  the  lease  is  given 
after  the  mortgage,  he  may  bring  ejectment  against  the  tenant  with- 
out notice  to  quit,  upon  the  ground  of  the  lessee  being  subject  to 
every  circumstance  of  the  mortgage,  and  of  the  mortgagee's  right 
of  possession.  He  may  by  assenting  to  the  lease,  create  a  tenancy 
from  year  to  year,  the  lease  being  considered  only  as  evidence  of 
the  quantum  of  rent.  Brad,  on  Distresses,  97.  It  is  proposed 
to  consider,  whether  the  purchaser  does  not  on  this  sale,  hold 
S.11  the  interest  which  the  mortgagor  had  on  the  land,  at  the  time 


312  SUPREME  COURT  [Philadelphia, 

(M'Call  v.  Lenox.) 

of  the  execution  of  the  mortgage  ;  or  whether  he  is  a  purchaser  of 
the  equity  of  redemption  only,  taking  the  estate  subject  to  all  the 
intervening  incumbrances  :  and  again  to  consider,  whether  he  is  not 
virtually  the  holder  of  all  these  incumbrances,  which  he  has  satis- 
fied by  the  payment  of  the  consideration  money  to  the  mortgagees. 

In  England  the  equity  of  redemption  is  not  extendable  on  an 
execution.  The  course  there  is,  to  levy  the  execution  on  the  land, 
and  then  apply  to  the  chancellor  for  a  decree  of  redemption,  claim- 
ing the  same  satisfaction  out  of  the  equitable  interest  as  he  would 
have  at  law  if  it  were  legal.  This  done,  he  may  then  bring  the  lien 
by  his  judgment  to  bear  upon  it  as  the  legal  estate.  Atk.  290.  3 
Atk.  200.     2  Fonbl.  168.     1  Poio.  Mort.  (by  Coventry)  257. 

But  where  the  sale  is  on  a  judgment  on  the  entire  bond  for  which 
the  mortgage  was  given,  it  would  appear  to  me,  that  the  entire 
estate  of  the  inheritance  was  the  subject  of  sale.  This  I  think  will 
appear  very  evident  from  a  consideration  of  the  nature  of  the  secu- 
rity by  mortgage.  A  mortgage  is  a  charge  upon  the  land.  What- 
ever will  give  the  money,  will  carry  the  estate  in  the  land  along 
with  it.  The  estate  in  land  is  the  same  thing,  as  the  money,  due 
upon  it.  It  goes  to  executors,  will  pass  by  a  will  not  executed 
according  to  the  statute  of  frauds.  The  assignment  of  the  debt  or 
forgiving  it  will  draw  the  land  after  it,  as  a  consequence.  It 
would  do  it,  though  the  debt  were  only  given  by  parol.  Weston's 
Lessee  v.  Moiclin,  2  Burr.  969.  A  mortgage,  though  in  form  a 
conveyance  of  the  land,  is  in  substance  but  a  security  for  the  pay- 
ment of  the  money,  and  the  debt  being  paid,  or  in  any  other  manner 
extinguished,  the  mortgagee  becomes  a  trustee  for  the  mortgagor. 
Wentz  v.  Dehaven,  1  Serg.  8f  Rawle,  367.  The  debt  is  the  prin- 
cipal, and  the  land  the  accessary.  In  Johnson  v.  Hall,  3  Johns. 
Cos.  329,  Kent,  Justice,  said,  "  when  the  note  to  secure  which 
the  mortgage  was  given,  was  negotiated,  the  interest  in  the  mort- 
gage, which  was  given  for  no  other  purpose  than  to  secure  that 
note,  passed  of  course.  It  required  no  writing,  no  assignment  on 
the  back  of  the  mortgage.  The  assignment  of  the  note  applied 
equally  to  the  note  and  the  pledge.  The  one  was  but  appurtenant 
to  the  other.  Whoever  was  owner  of  the  debt,  was  likewise  owner 
of  the  security.  There  must  be  something  peculiar  in  this  case, 
some  very  special  provision  of  the  parties  to  induce  the  court  to  se- 
parate the  ownership  of  the  note  from  the  ownership  of  the  mortgage. 
In  the  eye  of  common  sense,  and  of  justice,  they  will  generally  be 
united."  Following  this  decision  into  the  court  of  error,  1  Johns. 
Rep.  590,  we  find  it  to  be  unanimously  affirmed.  Spencer,  Justice, 
who  delivered  the  opinion  of  the  court,  observed,  "  that  where 
a  debt  secured  by  mortgage,  is  transferred  by  the  mortgagee,  he  be- 
comes trustee  for  the  benefit  of  the  person  having  an  interest  in  the 
debt."  Now  David  Lenox,  having  paid  off  these  mortgages  be- 
came the  owner  of  the  debt,  and  being  the  owner  of  the  debt,  he 
became  the  owner  of  the  securities  for  the  debt.     The  mortgagees 


March,  1823.]  OF  PENNSYLVANIA.  313 

(M'Call  v.  Lenox.) 

held  the  mortgages  in  trust  for  him.     In  Runyan  v.  Mersereau,  1 1 
Johns.  538,  the  same  doctrine  is  held.     Mortgages  are  but  securi- 
ties in  equity.     The  assignment  of  the  debt  or  forgiving  it  by  pa- 
rol draws  the  land  after  it  as  a  consequence.     The  debt  is  consi- 
dered the  principal,  the  land  as  an  incident  only.     In  equity  the 
debt  is  the  principal.     The  translation  of  the  interest  therein,  ne- 
cessarily draws  after  it  the  interest  of  the  land  in  equity.     By  the 
assignment  of  the  debt,  the  interest  of  the  land  becomes  transferred 
in  equity,  through  the  medium  and  circuity  of  a  trust,  without  any 
writing,  by  operation  of  law,  notwithstanding  the  statute  of  frauds. 
The  transaction  is  regarded  as  nothing  else  in  substance,  but  a  debt 
to  which  all  the  securities  are  merely  accidental  adjuncts,  and  which 
have  no  existence  but  by  their  union  with  the  subject  to  which  they 
are  attached.    The  equity  of  redemption  is  therefore  not  a  mere  trust, 
but  in  equity  is  the  veritable  estate.     Roberts  on  Frauds,  272  to  276. 
The  author  proceeds  in  277,  "  the  mortgage  is  not  a  conveyance 
of  land,  qua  land  which  passes,  but  a  pledge  or  security  in  all  re- 
spects, subservient  to  a  personalty  incapable  of  existing  in  separa- 
tion from  it,  existing  only  for  the  sake  of  it,  and  for  no  other  pur- 
pose."    Thus  we  see  the  inseparable  union  of  the  bond  and  the 
mortgage :  the  bond  (the  debt,)  the  principal  the  mortgage,  but  an 
incident,  an  accessary,  an  adjunct  to  it,  an  appurtenance  to  the 
mortgage,  incapable  of  existence  without  a  union  with  the  debt. 
How  comes  it  then,  that  a  judgment  for  the  principal,  the  debt,  a 
sale  for  the  debt,  a  payment  of  the  debt,  separates  them ;  that  this 
does  not,  as  a  consequence,  draw  the  land  with  it.     I  cannot  un- 
derstand why,  when  the  land  is  sold,  under  process  of  law,  for  the 
payment  of  the  debt,  the  purchaser  should  not  acquire  with  that 
the  incident,  as  much  as  if  he  had  obtained  an  assignment  of  the 
debt.     I  can  understand  this  when  it  is  sold   on  a  judgment  for 
another  debt.     That  is  but  an  equity  of  redemption,  the  residue  of 
the  mortgagor's  estate  in  the  premises.     But  when  it  is  sold  for 
the  very  debt  secured  by  the  mortgage,  I  cannot  contemplate  them 
as  distinct  substances.     In  equity,  the  equity  of  redemption  is  the 
veritable  estate,  the  united  estates  of  the  mortgagor  and  the  mort- 
gagee: the  debt  an  entire  one,  the  security  entire?  the  debt  the 
principal,  the  security  but  an  adjunct,  an  accessary  which  always 
follows  the  principal,  as  the  shadow  follows  the  substance.     I  do 
not  understand  the  New  York  decision,  Jackson  v.  Hall,  1 1  Johns. 
462,  as  laying  down  a  general  principle,  that  where  the  mort- 
gaged premises  are  sold  on  the  judgment  obtained  on  the  bond, 
the  mortgagee  can  sell  them  again  on  the  mortgage.     Far  from  it. 
The  court  lay  hold  of  the  strict,  rigid,  antiquated  notions  of  the  at> 
solute  right  of  the  mortgagee  after  default,  to  get  rid  of  the  very 
iniquitous  pretence  of  a  purchaser  who  bought  only  the  residue  of 
interest  remaining  in  the  mortgagor  after  executing  the  mortgage. 
He  purchased  for  70  dollars,  that  which  had  been  mortgaged  for 
700  dollars.     The  court  said,  this  was  most   unjust,  both  to  mortr 
vol..  ix.  2  K 


314  SUPREME  COURT  [Philadelphia, 

(M'Cull  v.  Lenox.) 

gagor  and  mortgagee ;  and  in  such  case,  where  positive  evidence, 
or  the  evidentia  rei,  the  purchase  money,  demonstrated  that  a  sale 
only  of  the  equity  of  redemption  was  made  understandingly  by  all, 
I  would  agree  to  this  decision,  on  this  principle.  But  where  the 
evidence  showed  it  was  the  fee  simple,  the  fee  simple  should  pass. 
That  was  the  case  here.  The  purchaser  is  entitled  to  the  whole 
fund  appropriated  to  secure  the  debt.  The  sale  on  the  judgment 
on  the  bond,  where  it  is  a  general  one  without  exception  or  reser- 
vation, is  coextensive  with  the  whole  lien  on  the  land,  and  from  the 
indissoluble  union  of  the  debt  and  of  the  mortgage,  it  necessarily 
follows,  that  it  is  a  cession  of  the  united  title  of  the  mortgagor  and 
mortgagee  at  the  time  of  the  execution  of  the  mortgage.  When 
the  mortgaged  premises  were  levied  on  by  the  fieri  facias,  it  was 
an  election  by  the  mortgagor  to  proceed  in  rem,  against  the  pledge, 
and  the  sale  on  the  venditioni  was  as  much  a  sale  of  the  pledge  out 
and  out,  as  if  it  had  been  made  on  a  levari  facias. 

It  is  no  objection  with  me,  that  the  party  has  elected  his  remedy. 
It  is  not  a  case  of  election  of  alternate  remedies.  The  remedies 
are  cumulative,  concurrent ;  may  be  all  carried  on  together,  though 
there  can  be  but  one  satisfaction.  In  England,  the  mortgagee  has 
three  remedies,  action  of  debt  on  the  bond,  ejectment,  and  bill  in 
equity  to  foreclose.  Here  he  likewise  has  three,  debt  on  the  bond, 
ejectment,  and  scire  facias  on  the  mortgage,  all  provided  at  the 
same  time,  if  he  so  choose. 

The  question,  whether  on  a  sale  by  a  junior  incumbrancer  which 
is  more  than  sufficient  to  satisfy  the  prior  mortgage,  the  mortgagee 
is  not  bound  to  look  to  the  sheriff,  is  a  vexed  question,  on  which  I 
give  no  opinion.  But  where  he  assents  to  the  sale  and  receives  the 
money,  as  he  unquestionably  may  do,  that  the  purchaser  holds 
something  more  than  the  mere  equity  of  redemption,  cannot  be  de- 
nied. It  is  a  usage  universal  in  Pennsylvania.  The  sheriff  has  a 
list  of  the  judgments  and  of  the  mortgages,  and  discharges  them  in 
their  order,  and  if  the  sale  amount  to  a  sufficient  sum  to  discharge 
all,  down  to  the  incumbrance  on  which  the  sale  has  been  made, 
and  all  are  discharged,  no  one  ever  doubted,  but  that  the  purchaser 
held  the  fee  simple.  Now  this  very  thing  has  been  done  here. 
This  is  not  peculiar  to  this  state.,  In  South  Carolina  the  law  is  the 
same,  1  Bay,  36,  and  2  Bay,  82,  where  the  land  has  been  sold  un- 
der an  execution  on  a  subsequent  judgment,  the  mortgagee  may 
elect  to  foreclose,  and  go  against  the  land,  or  sue  for  the  money 
arising  from  the  sale. 

But  this  question  has  been  long  since  settled  in  this  court  in 
Bantlepn  v.  Smith,  2  Binney,  146.  A  ground  rent  conveyance  is 
but  a  security  for  rent,  not  more  absolute  than  a  mortgage.  Yet 
where  the  proprietor  of  a  ground  rent  obtained  a  judgment  in  cove- 
nant for  arrears  of  rent,  and  sold  the  land,  it  was  decided,  that  he 
was  entitled  to  be  paid  out  of  the  proceeds  the  whole  of  the  rent 
in  arrear,  as  well  such  as  accrued  before  the  judgment  as  after. 


March,  1823.]  OF  PENNSYLVANIA.  315 

(M'Call  v.  Lenox.) 

And  the  Chief  Justice  compared  it  to  the  common  case  of  mort- 
gage and  bond,  and  said  it  never  had  been  doubted,  but  that  the 
mortgagee  after  judgment  on  the  bond  might  proceed  by  ejectment. 
But  it  has  been  carried  one  step  further :  that  even  the  assignee  of 
the  administrator  of  a  mortgagee  might  maintain  an  ejectment  in  his 
own  name.  1  Binn.  175.  The  administrator  then,  could  himself, 
in  his  own  name  support  ejectment,  and  why  ?  Because  he  was 
the  master  of  the  debt,  and  being  master  of  the  debt,  could  use  the 
mortgage,  as  an  instrument  to  enforce  payment. 

Boni  Judicis  est  ampliare  juris dictio7ie?n,  is  a  maxim  we  have' 
been  obliged  to  resort  to,  in  the  exercise  of  chancery  powers  in 
granting  equitable  relief.  The  system  is  progressive,  and  as  new 
cases  in  equity  are  daily  arising,  We  must  accommodate  our  com- 
mon law  means  to  meet  new  cases,  and  although  we  do  not  direct- 
ly grant  chancery  relief,  yet  by  another  medium,  we  attain  the 
same  end,  more  circuitously,  certainly,  but  not  less  effectually. 
We  arrive  at  the  same  point,  though  by  different  roads.  The  re- 
lief is  ultimately  the  same,  though  the  mode  of  administering  it  be 
different.  Now,  if  we  apply  and  exercise  the  powers  of  chancery 
here,  we  would  decree  Mann  and  Armstrong  to  assign  the  mort- 
gage to  Lenox,  in  which  case  he  could  recover  the  possession  from 
Mrs.  M(  Call.  We  cannot  do  that ;  but  we  can  accomplish  the  same 
end  by  that  which  is  a  solid  foundation  of  our  chancery  jurisdiction, 
by  supposing  that  to  have  been  done,  which  chancery  would  de- 
cree. This  is  the  basis  of  all  equitable  ejectment,  which  forms  a 
very  distinguished  feature  in  our  jurisprudence,  and  which  consid- 
ering as  a  bill  in  equity,  a  party  entitled  to  an  interest  in  land# 
which  could  only  be  come  at  in  a  court  of  equity,  can  recover  the 
land  itself,  with  such  conditions  as  will  compel  his  opponent  to  do 
him  justice.  If  Major  Lenox  was  in  possession,  Mrs.  M'-Call  could 
not  recover  in  ejectment  unless  she  tendered  the  principal  and  in- 
terest of  the  incumbrances  antecedent  to  her  lease.  If  he  could  de- 
fend in  ejectment  on  that  ground,  there  are  abundance  of  decisions 
which  show,  he  might  recover.  To  enforce  the  payment  of  a  lien, 
a  charge  on  land,  ejectment  will  lie.  Galbraith  v.  Fenton,  3  Serg. 
8f  Rawle,  352.  Wherever  a  defendant  could  defend  his  posses- 
sion on  an  equitable  claim,  a  plaintiff'  could  recover  possession  on 
the  same  equity.  So,  where  a  plaintiff,  on  an  equitable  title,  could 
support  ejectment,  defendant  in  such  right  could  defend  his  pos- 
session, against  the  legal  title.  And  if  a  plaintiff  in  ejectment  is 
bound  in  equity  to  make  title  to  the  defendant,  for  part  of  the  pre- 
mises, the  court  will  compel  him  to  do  the  defendant  justice,  by 
staying  execution  on  the  judgment,  till  the  title  to  the  part  is  se- 
cured to  him.  Mather's  Lessee  v.  Arkivright,  2  Binn.  93.  The 
experience  of  every  day  must  convince  us,  of  the  necessity  of  the 
liberal  exercise  of  chancery  powers,  without  which,  we  should  not 
deserve  the  name  of  a  court  of  justice. 

Hence  it  is,  that  as  in  equity,   D.  Lenox  would  be  entitled  to 


316  SUPREME  COURT  [Philadelphia, 

(M'Call  v.  Lenox,) 

call  on  the  legal  estate  to  protect  him,  having  paid  the  full  consi- 
deration  money  of  these  mortgages  to  the  mortgagees,  I  consider 
him  as  the  actual  owner,  for  every  beneficial  purpose,  of  them,  and 
as  such  entitled  to  the  possession.     He  is  then  clothed  with  the  le- 
gal title,  and  Mrs.  M'Call  has  no  superior  title  in  equity,  for  her 
interest  was  acquired  with  full  notice  of  the  prior  right,  notice  by 
the  registiy  ;  and  she  took  her  lease  subject  to  the  elder  title  of  the 
mortgagees.     That  this  may  be  well  understood,  I  consider  the  law 
of  Pennsylvania  to  stand  thus,  that  on  the  sale  of  lands  on  a  judg- 
ment on  bond,   secured  by  mortgage,  by  the  sheriff,  though  that 
judgment  is  posterior  to  the  execution  of  the  mortgage,  the  pur- 
chaser acquires  all  the  title  of  the  mortgagee,  and  will  hold  against 
all   subsequent   incumbrances    of   whatever  nature,    mortgages    or 
judgments,  and  this,  I  am  of  opinion,  has  been  the  long  and  well 
established  and   understood,  rule.      In  Bantleon  v.  Smith,  2  Binn. 
146,  is  the  doctrine  recognised,  not  then  first  determined.     There 
the  proprietor  of  a  ground  rent  in  fee,  who  obtained  a  judgment  in 
covenant,  for  the  arrears,  and  on  that  judgment  sold  the  land,  was 
entitled  to  be  paid  the  whole  rent  in  arrear  out  of  the  proceeds,  in 
preference  to  older  judgments.     It  had  been  before  so  settled  by 
President  Biddle.     I   except  from  this  general  doctrine,  the  case 
of  several  bonds,  given  to  the   same  person,  secured  by  the  same 
mortgage,  particularly  where  the  bonds  are  not  all  held  by  the  same 
hand,  and  confine  it  to  a  mortgage  given  for  one   entire  debt,  and 
for  which  entire   debt,  judgment  has  been  rendered,  and  the  pre- 
mises sold.     I  deny  the  right  of  the  mortgagee  to  proceed  either  by 
scire  facias,  or  ejectment,  to  disturb  such  purchaser  at  sheriff's  sale, 
and  contend,  that  it  is  not  the  equity  of  redemption  that  is  sold,  but 
all  the  title  of  the  mortgagor  at  the  time   of  the  execution  of  the 
mortgage.     Unless  indeed,  that  which  is  very  improbable  should 
ever  occur,  the  sale  was  made  expressly  of  the  equity  of  redemp- 
tion, and  nothing  more  evidenced  by  the  amount  of  the  sale  com- 
pared with  the  value  of  the  inheritance  :  and  that  was  the  case  so 
much  insisted  on  by  the  counsel  for  Mrs.  M'Call,  decided  in  the 
Supreme  Court  of  New  York,  10  Johns.  481.     But  so  far  from  that 
ease  laying  down  any  general  principle,  the  reason  and  grounds  of 
that  decision,  the  general  dictum  of  the  court  is  referable  only  to 
the  ancient  doctrine  of  mortgages,  and  the  court  decide  it  on  that 
rigid  principle,  that  only  the  equity  of  redemption  was  sold,  only 
the  residue  of  interest  remaining  in  the   mortgagor,  after  the  execu- 
tion of  his  mortgage,  proved  by  the  purchase  money,  which  was 
only  70  dollars,  though  it  had  been  mortgaged  to  secure  700  dol- 
lars.    But  here  the   purchase  money  was  the  full  value  of  the  fee 
simple  estate. 

It  appears  to  me,  for  all  these  reasons,  that  David  Lenox,  accord- 
ing to  the  terms  of  the  agreement,  is  entitled  to  judgment. 

Judgment  affirmed. 


March,  1823.]  OF  PENNSYLVANIA.  317 

[Philadelphia,  April  1],  1823.] 
In  the  Case  of  JOHN  GEST,  a  Lunatic. 

IN  ERROR. 

No  writ  of  error  lies  on  an  inquest,  finding  a  person  to  be  a  lunatic,  raturned  to  the 

Court  of  Common  Pleas. 

John  Gest,  was  found  to  be  a  lunatic,  by  an  inquest  held  by  order 
of  the  Court  of  Common  Pleas  of  Chester  county,  upon  which  a  writ 
of  error  issued  from  this  court. 

Dillingham  moved  to  quash  the  writ  of  error. 

The  court  called  on  Edwards  and  Ti/ghman  to  support  the  writ, 
who  cited  Queen  y.  Petty,  Sulk,  504,  that  a  writ  of  error  is  grant- 
able  ex  de  bito  justitice,  except  only  in  treason  or  felony.  In  The 
Commonwealth  y.  The  Judges  of  the  Common  Pleas  of  Phila- 
delphia County,  3  Binn.  273  and  Beale  y.  Dougherty,  lb.  432,  it 
was  held  that  a  writ  of  error  lies  on  the  order  of  the  Court  of  Com- 
mon Pleas,  dismissing*  an  appeal  from  the  judgment  of  an  alderman. 
Blackstone,  in  his  Commentaries  Vol.  3, p.  427,  is  in  point.  The 
previous  proceedings,  says  he,  on  the  commission  to  inquire  whether 
or  not  the  party  be  an  idiot  or  lunatic,  are  on  the  law  side  of  the 
Court  of  Chancery,  and  can  only  be  redressed  if  erroneous,  by  writ 
of  error  in  the  regular  course  of  law. 

Dillingha?7i  and  Hemphill,  contra.  The  writ  of  error  from  the 
Court  of  Chancery,  is  explained  in  3  Bl.  Com.  48,  to  be  from  the 
ordinary  court,  to  the  Court  of  King's  Bench  :  but  lie  there  states, 
that  he  has  met  with  no  traces  of  any  writ  of  error  being  actually 
brought  since  the  fourteenth  year  of  Queen  Elizabeth,  A.  D.  1572. 
And  in  Rex  y.  Carey,  where  the  cases  are  referred  to  by  Blackstone, 
were  cited  on  a  motion  in  chancery,  for  liberty  to  bring  a  writ  of 
error  in  the  King's  Bench,  the  lord  keeper,  North,  said,  all  those 
books  were  founded  only  on  the  single  opinion  of  my  Lord  Dyer, 
and  that  he  thought  the  jurisdiction  of  Chancery,  even  of  the  La- 
tin side,  not  subjected  unto,  nor  to  be  controlled  by  the  King's 
Bench  :  and  that  he  would  enjoin  all  such  writs  of  error.  The  pro- 
per remedy  for  any  error  committed,  is  by  appeal  to  the  king  in 
council,  and  not  in  the  ordinary  course  attending  the  established 
jurisdiction  of  the  kingdom.  2  Madd.  Ch.  567.  Sheldon  y.  Fer- 
tescue,  3  P.  Wms.  104.  4  Bro.  C.  C.  238,  note.  There  are 
many  cases  in  this  state,  in  which  no  writ  of  error  lies  to  this  court, 
from  the  decisions  of  inferior  tribunals,  2  Yeates,  162.  None  lies 
in  case  of  a  divorce,  Miller  y.  Miller,  3  Binn.  30  :  nor  in  road  cases, 
Ruhlman  v.  The  Commonwealth,  5  Binn.  24  :  or  where  the  court 
below  is  to  exercise  its  discretion,  Renninger  y.  Thompson,  6  Serg . 
4*  Rctwle.  1.  No  such  power  is  given  by  the  act  of  assembly,  of  the 
22d    May,    1722,    Purd.    Dig.    310,  or    is    deducible    from    ge= 


318  SUPREME  COURT  [Philadelphia, 

(In  the  case  of  John  Gest,  a  Lunatic.) 

neral  principles.  The  power  of  a  Court  of  Chancery,  so  far  as  re- 
lates to  the  care  of  the  persons  and  estates  of  those  who  are  non 
compotes  mentis,  is  given  by  the  constitution,  to  the  Supreme  Court, 
and  the  several  Courts  of  Common  Pleas,  in  the  same  language,  and 
no  superintendence  of  the  one  or  the  other  is  recognised. 

The  court  quashed  the  writ  of  error. 


[Philadelphia,  April  25,  1823.] 
HARRISON  against  WALN  and  another. 

The  court  will  not,  on  motion  to  set  aside  a  Fi.  Fa.,  inquire  into  the  title  of  a  third 
person,  who  claims  the  lands  levied  on,  but  will  leave  him  to  his  ejectment. 

Nor  will  the  court,  in  such  case,  inquire  into  the  existence  of  a  lien  on  the  land'; 
though  they  would  apply  the  proceeds  to  them  if  valid,  when  the  money  is 
brought  into  the  court  by  the  sheriff. 

If  a  subsequent  judgment  creditor  buy  in  a  prior  mortgage  and  judgment,  and  un- 
der the  latter,  levy  on  lands  of  the  debtor,  not  included  in  the  mortgage,  with  a 
view  to  the  payment  of  his  own  judgment  out  of  the  mortgaged  property,  the  court 
will  not  interfere,  on  motion,  to  relieve  one  claiming  the  land  levied  on,  under  a 
voluntary  conveyance,  by  directing  the  debtor  to  proceed  against  the  mortgaged 
premises  :  though  it  seems,  they  would  in  favour  of  a  purchaser  for  a  valuable  con- 
sideration. 

Fieri  Facias  to  March  Term,  1823,  for  the  use  of  Daniel  Smith 
and  David  Lewis. 

This  case  was  argued  by  C.  J.  Ingersoll,  and  /.  Sergeant,  for 
the  defendant :  and, 

J.  S.  Smith  and  Binncy,  contra. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  a  motion  to  set  aside  the  execu- 
tion, which  was  issued  for  the  use  of  Daniel  Smith  and  others, 
assignees  of  George  Harrison,  who  had  entered  judgment  on  a  bond 
with  warrant  of  attorney,  &c,  from  said  Sarah  and  William  Wain. 
Mr.  Harrisons  debt  was  secured  also  by  a  mortgage  from  Sarah 
Wain,  bearing  the  same  date  as  the  bond,  viz  :  the  15th  November, 
1818,  on  two  nouses  and  lots  in  Second  Street.  The  assignees  of 
the  judgment  paid  full  value  for  it,  and  received  an  assignment  both 
of  the  judgment  and  mortgage ;  and  they  laid  their  execution,  not 
on  the  mortgaged  property,  but  on  a  house  and  store  in  Market 
Street,  and  also  on  several  tracts  of  land  near  Frankfort,  in  the 
county  of  Philadelphia,  claimed,  in  part  by  Jacob,  and  in  part  by 
Nicholas  Wain,  sons  of  Nicholas  Wain  the  elder,  deceased,  and 
of  his  widow,  Sarah  Wain,  one  of  the  defendants.  The  motion 
to  set  aside  the  execution,  was  made  on  behalf  of  the  said  Jacob 
and  Nicholas  Wain,  and  their  counsel  have  rested  it  on  different 
grounds,  which  shall  be  considered  distinctly,  as  I  think  the  case 


March,  1823.]  OF  PENNSYLVANIA.  319 

(Harrison  v.  Wain  and  another.) 

has  been  somewhat  perplexed,  by  blending  matters  which  ought  to 
be  kept  separate. 

1st.  In  the  first  place,  it  was  said,  that  part  of  this  property  be- 
longed, in  equity,  to  Jacob,  and  part  to  Nicholas  Wain,  having 
been  held  in  trust  for  them  by  their  father,  Nicholas,  who  devised 
it  to  their  mother,  Sarah,  the  defendant.  All  claim  of  this  kind, 
is  to  be  thrown  out  of  the  question ;  because  if  Jacob  and  Nicholas 
Wain  have  an  equitable  title,  they  may  maintain  it  in  ejectment, 
and  there  can  be  no  occasion  for  the  summary  interposition  of  this 
court.  The  sheriff  can  sell  no  more  than  the  title  of  Sarah  Wain, 
such  as  it  is,  and  if  Jacob  and  Nicholas  have  an  equity,  and  due 
notice  is  given  at  the  time  of  sale,  the  purchaser  must  take  it  sub- 
ject to  that  equity.  It  is  the  rule  of  this  court,  not  to  interfere  with 
executions,  regularly  issued,  but  in  case  of  necessity,  and  where 
land  is  sold  by  the  sheriff,  as  the  property  of  the  defendant,  which 
is  claimed-by  a  third  person,  (a  very  common  case,)  the  parties  are 
left  to  contest  the  title  in  an  ejectment. 

2d.  But  Jacob  and  Nicholas  Wain  rely  likewise,  on  the  equity 
of  their  case,  independently  of  any  title,  legal  or  equitable,  vested 
in  them  in  the  life  of  their  father.  I  will  state  the  circumstances 
of  the  case.  Nicholas  Wain  the  elder,  devised  his  estate,  of  which 
the  property  in  question  was  part,  to  his  wife  Sarah  in  fee.  Sarah 
Wain  having  made  herself  responsible  for  large  sums,  due  to  sun- 
dry persons,  from  her  son  William,  her  friends  became  alarmed 
for  her  situation,  as  well  on  her  own  account,  as  that  of  her  other 
sons  Jacob  and  Nicholas,  and  advised  her  to  make  some  provision 
for  those  sons,  provided  it  could  be  done,  consistently  with  the 
principles  of  justice.  In  order  to  ascertain  this,  they  made  an  esti- 
mate of  her  property,  and  her  debts,  by  which  it  appeared,  that  her 
property  amounted  to  119,000  dollars,  and  her  debts  to  about 
78,000  dollars.  Supposing,  therefore,  that  the  thing  might  be  done 
with  the  strictest  propriety,  Sarah  Wain,  by  the  advice  of  her 
nephew,  Thomas  Wistar,  and  her  friend  Thomas  Steiaartson, 
both  men  of  undoubted  integrity,  executed  conveyances  of  the  lands 
and  real  estate,  on  which  this  execution  was  laid,  to  her  sons,  Ja- 
cob and  Nicholas  Wain,  in  severalty,  bearing  date  the  3d  June, 
1819,  posterior  to  the  plaintiff's  judgment,  which  was  entered  the 
5th  May,  1819.  A  negotiation  afterwards  took  place  between 
the  Bank  of  North  America  and  Mrs.  Wain,  and  between  her  and 
the  Phoenix  Insurance  Company,  to  both  which,  Messrs.  Wistar 
and  Stewartson  were  privy ;  and  they  say,  that  the  directors  of 
these  corporations  were  informed  of  the  conveyances  which  Mrs. 
Wain  had  made  to  Nicholas  and  Jacob  Wain.  On  the  13th  No- 
vember,  1819,  Mrs.  Wain  gave  her  bond  and  warrant,  &c.  to  the 
Bank  of  North  America,  for  40,200  dollars,  and  on  the  same  day 
she  gave  her  bond  and  warrant  to  the  Phoenix  Insurance  Com- 
pany,  for  17,000  dollars,  judgments  were  entered  on  both  these 
bonds  a  few  days  after  their  date.     The  bond  to  the  Bank  of  North 


320  SUPREME  COURT  [Philadelphia, 

(Harrison  v.  Wain  and  another.) 

America,  was  for  sundry  debts  of  William  Wain,  for  which  Mrs. 
Wain  had  made  herself  responsible,  and  the  bond  to  the  Phoenix 
Insurance  Company  was  for  a  debt  of  William  Wain's,  for  which 
his  brother  Nicholas  had  become  responsible,  and  which  was  as- 
sumed by  Mrs.  Wain,  it  being  understood  that  Nicholas  should  be 
discharged.  Previous  to  the  execution  of  these  bonds,  Nicholas 
Wain  had  reconveyed  to  his  mother,  the  real  estate  which  she  had 
before  conveyed  to  him.  The  deed  of  re-conveyance  bears  date  the 
22d  July,  1819,  and  was  recorded  the  same  day.  The  avowed 
object  of  this  re-conveyance  was,  to  prevent  the  Phoenix  Insu- 
rance Company,  from  obtaining  a  lien  on  the  property  of  Nicholas 
by  a  judgment,  which  was  expected  to  be  soon  entered  in  a  suit  then 
depending. 

On   the  5th  November,  1819,  Mrs.    Wain  executed   a  deed  by 
which   she  conveyed  to    Thomas    Wistar  and   Thomas  Stewartson, 
(without   their  knowledge)   the  real  estate  which  had  been  re-con- 
veyed to  her  by  her  son  Nicholas,   as  before  mentioned,  in  trust 
for  Nicholas  and  his  heirs,  but  by  an  agreement  between  Mrs.  Wain 
and  Nicholas,  she  was  to   enjoy  the  rents   and  profits  for  her  life. 
Contrary    to  the    expectation    of   Messrs.    Wistar  and  Stewartson, 
the  estate  of  Mrs.    Wain  was  unequal  to  the  payment  of  her  debts. 
She   afterwards,   on  the  18th  March,    1822,  executed  an  assign- 
ment of  all  her  property  of  every  kind,  to  Henry  Nixon  and  others, 
in  trust,  to  sell  the  same  and  apply  the  proceeds  to  the  payment  of 
her  debts,  giving  a  preference  to   the  judgments  of  the  Bank  of 
North  America,  and  the  Phoenix  Insurance  Company.     Some  time 
after  this   assignment,  the   Bank  of  North  America  settled  on  Mrs. 
Wain,  an  annuity  of  800  dollars  per  annum  for  life,  and  the  Phoenix 
Insurance  Company  settled  on  her  an  annuity  of  340  dollars  per 
annum  for  life.     These  corporations  are  the  real  plaintiffs  in  this 
execution,  and  they  levied,  not  on  the  mortgaged  property,  but  on 
the  property  conveyed  by  Mrs.  Wain,  to  her  sons  Jacob  and  Nicholas, 
which   was  bound  by   George  Harrison's  judgment,  in  order  that 
they  might  afterwards  levy  on  the   mortgaged  property  by  virtue 
of  their   own  judgments,  or  that  Henry  Nixon  and  others  (the  ge- 
neral assignees  of  Mrs.    Wain)  might  sell  the  property  and  apply  it 
to   the  payment    of   these  judgments.     It  was   contended  by  the 
counsel  for  Jacob  and  Nicholas   Wain,  that  the  execution   in  this 
case  should  have  been  laid   on  the  mortgaged  property,  and  that 
the  plaintiff's  ought  not  to  be  permitted,  in  this  indirect  manner,  to 
defeat  the  conveyance  made  by  Mrs.  Wain,  of  which  they  had  no- 
tice before  she   gave  her  bonds  to  them.     On  the  other  hand,  the 
plaintiffs  say,  that  having  acquired   a  legal  advantage,  by  the  pur- 
chase of  George  Harrisoyi's  judgment,  the  court  ought  not  to  prevent 
them  from  making  the  most  of  that  advantage,  for  the  purpose  of  re- 
ceiving their  just  debts.     If  Jacob  and  Nicholas   Wain,  were  pur- 
chasers for  a  valuable  consideration,  there  would  be  strong  ground 
for  the  interference  of  the  court. 


March,  1823.]  OF  PENNSYLVANIA.  321 

(Harrison  v.  Wain  and  others.) 

In  such  case  there  would  be  great  reason  for  restraining-  the  execu- 
tion of  the  plaintiffs,  in  the  first  instance,  to  the  mortgaged  property, 
which  should  be  exhausted  before  they  were  suffered  to  touch  the 
property  of  purchasers.  But  this  case  is  otherwise.  Jacob  and 
Nicholas  Wain  received  a  voluntary  conveyance  from  their  mo- 
ther, which  cannot  stand  against  her  creditors.  But,  it  is  objected, 
that  the  plaintiffs  knew  of  these  conveyances  and  assented  to  them. 
It  appears  that  they  did  know  of  them.  But  that  they  assented, 
so  as  to  preclude  their  ever  after  calling  them  in  question,  has  not 
been  made  out  by  any  means  to  our  satisfaction.  They  gave  no 
writing,  evidencing  any  kind  of  assent,  or  confirmation.  Nor  is  it 
alleged,  by  the  witnesses,  that  any  confirmation  was  made,  by  po- 
sitive parol  agreement.  From  the  circumstance  of  the  existence 
of  the  conveyances  being  communicated  to  the  plaintiffs,  and  no  ob- 
jection being  made  by  them,  their  assent  has  been  inferred.  Now 
how  stands  the  equity  of  the  case  ?  It  was  taken  for  granted  by 
Mrs.  Wain  and  her  friends,  who  advised  her  to  make  the  convey- 
ances to  her  sons,  that  there  would  be  a  considerable  surplus  of  her 
estate,  after  paying  all  debts.  The  character  of  all  the  parties  for- 
bids any  idea  of  an  intent  to  provide  for  the  children,  at  the  ex- 
pense of  creditors.  When  Messrs.  Stewartson  and  Wistar  com- 
municated to  the  plaintiffs  the  situation  of  Mrs.  Wain's  affairs, 
no  doubt  the  plaintiffs  were  induced  to  believe,  that  they  should 
receive  full  payment  of  their  debts.  Now  it  turns  out,  that  there 
was  a  great  mistake  in  that  important  particular.  The  debts  will 
not  be  paid,  if  the  conveyance  stand  good  against  the  creditors. 
What  equity  then  have  the  children  against  the  creditors  ?  The 
plaintiffs  ask  nothing  of  the  court  They  have  the  law  on  their  side. 
But  the  children  call  for  the  interference  of  the  court,  because  the 
proceedings  of  the  plaintiffs  are  against  equity-  Under  the  circum- 
stances of  this  case,  would  chancery  compel  the  plaintiffs  to  relin- 
quish their  legal  rights  ?  I  cannot  think  it  would.  The  plaintiffs 
have  given  no  writing,  have  done  no  act,  confirming  the  conveyances 
to  Jacob  and  Nicholas  Wain.  And  as  to  any  implied  assent,  under 
a  supposition  that  their  debts  would  be  paid,  its  force  is  very  much 
impaired  by  the  actual  event,  which  has  shown  that  the  debts  cannot 
be  paid  without  resorting  to  the  funds  in  the  hands  of  the  children. 
I  desire  it  to  be  understood,  that  I  give  no  opinion  on  any  title  which 
Jacob  or  Nicholas  Wain,  may  have,  paramount  to  the  title  derived 
from  their  mother,  nor  on  any  right  which  they  may  have  to  resort 
to  their  father's  estate,  for  debts  due  to  them  from  him.  There  are 
appearances  of  hardship,  in  their  case,  but  the  whole  is  not  suffi- 
ciently disclosed,  to  authorize  the  court,  to  express  an  opinion.  If 
debts  are  due  from  the  estate  of  Nicholas  Wain,  deceased,  and 
those  debts  still  retain  their  lien  on  the  real  property,  the  court  would 
have  a  right  to  apply  the  proceeds  of  the  sale,  to  the  discharge  of 
the  lien,  when  the  money  shall  be  brought  in  by  the  sheriff  But 
VOL.  ix.  2  S 


322  SUPREME  COURT  [Philadelphia, 

(Harrison  v.  Wain  and  others.) 

that  is  no  reason  for  setting1  aside  the  question.  All  that  is  now  to 
be  considered,  is,  whether  the  proceedings  of  the  plaintiffs  have  been 
shown  to  be  so  much  against  equity,  that  the  court  should  arrest  the 
execution.  I  am  of  opinion  that  this  has  not  been  shown,  and  there- 
fore the  motion  should  be  rejected. 

Motion  rejected. 


{Philadelphia,  Atril  12,  1823.] 
LYLE  and  others  against  RICHARDS, 

CASE  STATED. 

J.  H.  the  elder,  being  seised  in  fee,  devised  lands  to  his  nephew  W.'H.  for  life,  without 
impeachment  of  waste,  and  after  his  decease,  to  the  first  son  of  his  body  for  and 
during  his  natural  life^witliout  impeachment  of  waste,  and  alter  his  decease,  to  the 
heirs  male  of  his  body  lawfully  begotten,  that  is  to  say,  the  first,  second,  third, 
fourth,  and  every  other  son  and  sons  successively  of  said  first  son,  as  they  shall  be 
in  seniority  of  age  and  priority  of  birth,  and  to  the  heirs  male  of  the  body  lawfully 
begotten  of  such  first,  &c,  son  and  sons  respectively  ;  and  in  default  of  such  is- 
sue,  to  the  second  son  of  said  VV.  H.  for  and  during  his  natural  life,  &,c.,  and  after 
his  decease  to  the  heirs  male  of  the  body  of  such  second  son  lawfully  begotten,  that 
is  to  say,  &c.  (as  before  wilh  the  first,)  and  in  default  of  such  issue  to  the  third, 
fourth,  fifib,  and  every  other  son  and  sons  successively  of  the  body  of  said  W.  H. 
one  after  another,  according  as  they  shall  be  in  seniority  of  age  and  priority  of 
birth  for  their  natural  lives,  &.C.,  and  after  their  deaths,  &c.  (as  before  wilh  the 
first  and  second.)  And  for  default  of  such  issue  to  his  nephew  A,  H.  for  life,  &c. 
without  impeachment  of  waste,  and  after  his  decease  to  the  first  son  of  his  body, 
&c.  exactly  as  it  had  been  to  the  issue  of  VV,  H.,  and  for  default  of  all  such 
issue  male  as  aforesaid  to  the  heirs  of  the  body  of  the  6aid  VV,  H.,  and  for  default 
of  such  heirs,  then  to  the  heirs  of  the  body  of  the  said  A.  H„  and  after  other  re- 
mainders over,  remainder  to  the  right  heirs  of  the  testator.  The  will  was  dated 
4th  March,  1776,  and  the  testator  died  in  the  year  1763,  at  which  time  his  ne- 
phews VV.  H.and  A.  H,  were  both  living,  and  also  the  said  A.  II.,  first  son  J.  and 
second  son  A.  A.  H.  died  before  his  brother  VV.  H.,  leaving  issue  two  sons,  J. 
and  A.,  and  four  daughters.  VV.  H.  died  without  issue.  After  his  death,  J.  son 
of  A-  H.,  conveyed  the  land  by  deed  of  bargain  and  sale,  to  T.  P.  in  fee.  To  this 
deed  A.  was  a  party,  and  it  was  declared  to  be  to  make  T.  P.  tenant  to  the  pro- 
cess in  a  common  recovery,  which  to  be  suffered  for  the  purpose  of  vesting-  the 
fee  simple  in  J.  H.,  was  accordingly  suffered  in  the  Supreme  Court,  at  March 
Term,  1803,  with  treble  voucher,  the  said  T.  P.,  J.  and  A.  being  severally 
vouched. 

Held,  that  J.  was  seised  with  an  estate  for  life  in  possession,  of  contingent  remain- 
der to  his  sons  successively  in  tail  male,  and  that  A.  had  an  estate  for  life  vested 
in  interest  with  contingent  remainders  to  his  sons  successively  in  tail  mail,  alter 
which  a  remainder  in  tail  general  was  vested  in  J.,  with  remainder  in  fee  simple, 
vested  in  J.  and  A.  and  their  sisters;  that  the  recovery  was  well  suffered,  and 
J.  by  it  became  seised  of  an  estate  in  fee  simple  in  possession. 

The  common  law  doctrine  of  forfeiture,  for  the  purpose  of  barring  contingent  re- 
mainders, has  been  extended  to  Pennsylvania . 

Covenant  by  James  Lyle,  Joseph  R.  Ingersoll,  Edward  Ellice, 
and  Thomas  B.  Barclay  assignees  of  Francis  L.  G'Bierne  and 
Rebecca,  his  wife,  James  Lyle,  John  B.  Newman  and  William 
H.  Todd,  assignees  of  Henry  Beckett  and  Mary,  his  wife.    Joseph 


March,  1823.]  OF  PENNSYLVANIA.  323 

(Lyle  and  others  v.  Richards.) 

R.  lngersott  and  William  Raiole,  Jr.,  assignees  of  Hartman  Kuhn 
and  Ellen,  his  wife,  and  Andrew  Hamilton,  Margaret  Hamilton 
and  Mary  Hamilton,  the  said  Andrew  in  his  own  right,  and  to- 
gether with  the  said  Margaret,  Mary,  Rebecca  0,Bcirne,  Mary 
Beckett,  and  Ellen  Kuhn,  being  heirs  and  assignees  of  James  Ha- 
milton, deceased,  plaintiffs,  against  Samuel  Richards,  defendant, 
in  which  the  following  case  was  stated  for  the  opinion  of  the 
court. 

James  Hamilton,  Esq.,  the  elder,  formerly  of  Bush  Hill,  in 
the  county  of  Philadelphia,  being  seised  in  fee,  of  the  estate  on 
which  he  lived,  made  his  last  will  and  testament,  dated  the  4th 
March,  1776,  with  codicils  thereto,  subsequent  in  date,  by  which 
he  devised  the  estate,  called  Bush  Hill,  containing  about  153  acres, 
and  148  perches  of  land,  together  with  a  city  square  of  ground,  to 
his  nephew,  Willia7n  Hamilton,  for  life,  with  remainders  to  the 
children  of  his  nephew,  Andrew  Hamilton,  as  follows : 

To  his  nephew   William  Hamilton,  second   son  of  his  brother, 
deceased,  Bush  Hill,  &c,  containing  154  acres,  and  other  proper- 
ty, for  life,  without  impeachment  of  waste ;  and  after  his  decease, 
to  the  first  son  of  his  body,  lawfully  begotten,  for  and  during  his 
natural  life,  without  impeachment  of  waste  ;  and  after  his  decease, 
to  the  heirs  male  of  the  body  of  such  first  son,  lawfully  begotten,- 
that  is  to  say,  the  first,  second,  third,  fourth,  and  every  other  son 
and  sons  successively  of  the  first  son  of  the  said    William  Hamil- 
ton, lawfully  begotten,  as  they  shall  be  in  seniority  of  age  and  pri- 
ority of  birth,  and  to  the  heirs  male  of  the  body,  lawfully  begot- 
ten, of  such   first,  second,  third,  fourth,  and  every  other  son  and 
sons  respectively;  and  in  default  of  such  issue,  to  the  second  son  of 
the  body  of  William  Hamilton,  for  and  during  his  natural  life,  &c. 
and  after  his  decease,  to  the  heirs  male  of  the  body  of  such  se- 
cond son,  lawfully  begotten,  that  is  to  say,  &c,  as  before  with  the 
first :  and  in  default  of  such  issue  to   the  third,  fourth,  fifth,  and 
every  other  son  and   sons  successivel}7,  of  the  body  of  the  said 
William  Hamilton,  one  after  another  according  as   they  shall   be 
in  seniority  of  age,  and  priority  of  birth,  for  their  natural  lives,  &c. 
and  after  their  deaths,  &c,  as  before  with  the  first  and  second, 
And  for  default  of  such   issue,  to  his  nephew  Andrew  Hamilton, 
for  life,  without  impeachment  of  waste,  and  after  his  decease,  to 
the  first  son  of  his  body,  &c.  exactly  as  it  had  been  to  the  issue 
successively  of   William  Hamilton.     And  for  default  of  all   such 
issue  male  as  aforesaid,  to  the  heirs  of  the  body  of  the  said  Wil- 
liam Hamilton,  and  for  default  of  such  heirs,  then  to  the  heirs  of 
the  body  of  the  said  Andrew  Hamilton.     And  for  default  of  such 
heirs,  then  to  his  nephew  John  Allen,  for  and  during  his  natural 
life,  &c,  and  after  his  decease,  to  the  first,  second,  third,  and  all 
and  every  other  son  and  sons  of  the  body  of  the  said  John  Allen, 
and  to  the  heirs  male  of  their  several  and  respective  bodies,  the 
one  after  the  other,  &c,  the  elder  being  always  preferred  to  the 


324  SUPREME   COURT  [Philadelphia, 

(Lyle  and  others  v.   Richards.) 

younger.  And  in  default  of  such  issue,  to  his  nephew  Andrew 
Allen,  for  life,  &c,  and  after  his  decease,  to  the  heirs  male  of 
his  body,  lawfully  begotten;  and  in  default  of  such  heirs  male 
to  my  nephew  James  Allen,  for  life  and  after  his  decease,  to  the 
heirs  male  of  his  body,  lawfully  begotten.  And  for  default  of 
such  heirs  male,  then  to  his  nephew  William  Allen,  Jr.,  and  to 
the  heirs  of  his  body,  lawfully  begotten,  for  ever.  And  in  default 
of  all  such  issue,  then  to  his  own  right  heirs  for  ever. 

Provided,  that  if  any  such  heirs  of  the  body  of  any  such  person 
shall  happen  to  be  two  or  more  females,  then  the  first  or  eldest  of 
such  two  or  more  females,  shall  take  the  premises  as  special  heir, 
and  she  only  and  solely  ;  and  the  heirs  of  her  body  lawfully  begot- 
ten, shall  have  and  enjoy  the  whole  of  the  devised  premises  to 
herself  alone,  and  to  the  heirs  of  her  body,  without  partition  or  di- 
vision. And  on  failure  of  such  issue  of  the  first  or  eldest  of  such 
females,  then  the  same  shall  succeed  and  remain  whole  and  entire, 
without  partition  or  division  to  the  second,  or  next  eldest  of  such 
two  or  more  females,  and  to  the  heirs  of  her  body,  lawfully  begot- 
ten, and  so  from  time  to  time,  in  like  manner,  as  often  as  that 
case  shall  happen. 

And  he  empowered  every  person  who  should  at  any  time  be  in 
possession  of  the  lands,  &c.,to  do  all  acts,  &c,  for  granting  out  for 
any  estates  however  large,  of  any  of  the  Lancaster  lots,  reserving 
ground  rents.  And  with  regard  to  Bush  Hill,  authorized  any 
person  in  possession,  to  grant  on  building  leases,  not  exceeding  six- 
ty-five years. 

He  devised  an  estate  in  Hunterdon,  New-Jersey,  to  James  Ha- 
milton, for  his  more  liberal  maintenance  and  education,  in  fee  :  that 
in  case  of  his  death  under  age,  then  to  the  second  and  every  other 
sons  of  Andrew  Hamilton,  in  succession.  And  if  none  of  them 
attain  21  years  of  age,  then  to  William  Hamilton  in  fee. 

William  Hamilton  was  appointed  residuary  legatee  and  devi- 
see ;  and  William  Hamilton,  Andrew  Allen,  and  John  Allen, 
were  nominated  executors. 

The  said  James  Hamilton,  in  the  year  1783,  died  unmarried, 
without  issue,  seised  of  the  estate  in  question. 

William  Hamilton  the  devisee  in  the  said  will  mentioned,  en- 
tered into  the  premises  and  died  seised  thereof,  in  the  year  1813, 
unmarried,  and  without  issue.  Andreio  Hamilton  in  the  said  will 
mentioned,  died  before  William.  The  children  of  Andrew  Hamil- 
ton then  living,  consisted  of  the  following:  first,  James  Hamilton, 
the  eldest  son,  Andrew  Hamilton,  the  second  son,  born  No- 
vember 4th,  1776,  Margaret  Hamilton,  the  eldest  daughter,  Mary 
Hamilton,  the  second  daughter:  Ann  Lyle,  another  daughter 
of  Andrew  Hamilton,  was  dead,  leaving  Rebecca  O'Beirne,  Mary 
Beckett,  and  Ellen  Kuhn.  After  the  death  of  the  said  William 
Hamilton,  James  Hamilton,  above  named,  the  eldest  son  of 
Andrew   Hamilton,  the    same    Andreio   that  is   mentioned    in    the 


March,  1823.]  OF  PENNSYLVANIA.  325 

(Lyle  and  others  v.  Richards.) 

will  of  James  Hamilton,  the  elder  and  above  named,  entered  on  the 
premises  under  the  will  of  his  grand  uncle,  James,  and  continued 
seised  of  the  same  until  the  common  recovery  and  conveyance  here- 
after mentioned.  James  and  Andrew  Hamilton,  at  the  time  of  the 
suffering  of  the  common  recovery  hereafter  mentioned  were  unmar- 
ried, and  without  issue. 

On  the  5th  day  of  March,  1814,  a  deed  to  lead  the  uses  of  a 
common  recovery  about  to  be  suffered  of  the  premises,  was  made 
by  the  said  James  Hamilton,  conveying  the  said  Bush  Hill  estate 
and  city  square  of  ground  to  Dr.  Thomas  Parke,  in  fee,  wherein  it 
was  covenanted,  that  James  Lyle  should  be  the  defendant,  Thomas 
Parke,  tenant  to  the  prcecipe,  James  Hamilton,  first  vouchee,  and 
Andrew  Hamilton,  the  second  vouchee,  who  should  vouch  the  com- 
mon vouchee,  and  that  the  estate  should  be  for  the  use  of  James 
Hamilton  in  fee. 

At  the  March  Term,  1814,  of  the  Supreme  Court  in  the  county 
of  Philadelphia,  a  writ  of  entry  was  accordingly  issued  by  James 
Lyle  demandant,  against  Thomas  Parke,  physician,  tenant,  and 
a  common  recovery  of  the  premises  suffered  with  treble  voucher. 

On  the  5th  of  April,  1814,  the  said  James  Hamilton  granted 
and  conveyed,  one  equal,  undivided  third  part  of  the  said  estate, 
and  city  square  of  ground,  to  his  brother  Andrew  Hamilton  and  his 
heirs  and  assigns,  prout  deed.  On  the  7th  day  of  April,  1814, 
articles  of  agreement  were  made  and  entered  into  between  the  said 
James  and  Andrew  Hamilton,  and  Thomas  Cadwallader,  and  others, 
authorizing  the  latter,  among  other  things  to  make  conveyances  of 
part  of  the  said  premises  to  purchasers,  reserving  rent  charges  there- 
from to  the  said  James  and  Andrew  Hamilton,  their  heirs  and  as- 
signs. 

On  the  2d  day  of  May,  1814,  the  said  James  and  Andrew  Ha- 
milton, by  their  attorney,  Thomas  Cadiuallader,  duly  constituted, 
and  acting  under  the  last  mentioned  contract  of  7th  April,  1814, 
granted  and  conveyed  the  lot  of  ground  in  the  declaration  men- 
tioned, being  part  of  the  Bush  Hill  estate,  and  premises  of  which, 
the  said  common  recovery  was  suffered  as  aforesaid  to  the  defen- 
dant Samuel  Richards,  and  to  his  heirs  and  assigns,  reserving  a 
rent  charge  therefrom  to  the  said  James  and  Andrew  Hamilton 
and  their  heirs,  280  dollars  per  annum,  for  ever,  payable  half  yearly. 

Samuel  Richards,  by  virtue  of  the  said  grant  and  conveyance, 
entered  into,  and  was,  and  is  seised  of  the  said  premises  in  the  last 
mentioned  deed  described. 

The  said  James  Hamilton,  thus  seised,  together  with  his  brother 
Andrew,  of  the  said  rent  charge,  in  July  1817,  died  intestate,  un- 
married and  without  issue,  leaving  as  his  heirs  at  law,  the  said  An- 
drew Hamilton,  his  brother,  and  his  sisters  Margaret,  Mary,  and 
Rebecca,  and  his  two  nieces  Mary  Bccket  and  Ellen  Lyle,  daughters 
of  his  sister  Ann  Lyle,  deceased. 


326  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

On  the  11th  day  of  November  $  1818,  Mary,  now  wife  of  Henri/ 
Becket,  then  living  unmarried,  granted  and  conveyed  her  part  and 
share  of  the  said  James  Hamilton's  estate  to  James  Lyle,  John  B. 
Newman  and  William  H.  Tod,  and  their  heirs,  in  trust,  &c. 

On  day  of  March,  1819,  Ellen  Lyle  now  the  wife  of  Hart- 

man  Kuhn,  together  with  her  said  husband,  granted  and  conveyed 
her  part  and  share  of  the  said  James  Hamilton's  estate  to  Joseph  R. 
Ingersoll  and  William  Raivle,  Jr.  Esqrs.  and  their  heirs  and  assigns 
in  trust,  &c. 

On  the  27th  of  September,  1819,  the  said  Rebecca,  one  of  the  sis- 
ters of  the  said  James  Hamilton  and  the  wife  of  Francis  L.  O'Beirne, 
together  with  her  said  husband,  granted  and  conveyed  her  part  and 
share  of  her  said  brother  James's  estate  to  James  Lyle,  Joseph  R. 
Ingersoll,  Edioard  Ellice,  and  Thomas  B.  Barely,  and  their  heirs  in 
trust,  &c.  prout  deed. 

The  question  for  the  consideration  of  the  court  was,  did  the  com- 
mon recovery  above  mentioned,  vest  in  the  said  James  Hamilton  in 
his  life  time,  an  estate  in  fee  simple,  in  the  premises,  so  as  to  enable 
him  to  grant  one  third  thereof  to  the  said  Andrew  Hamilton,  and  his 
heirs,  and  to  enable  them  to  make  a  good  estate  in  fee,  in  the  pre- 
mises to  the  defendant. 

This  case  was  very  ably  and  elaborately  argued  by  J.  R.  Ingersoll 
and  Binney  for  the  plaintiff,  and  J.  Sergeant  for  the  defendant ;  but 
the  authorities  and  arguments  are  so  fully  cited  and  commented  upon, 
in  the  opinions  of  the  Judges,  that  we  have  not  deemed  it  requisite 
to  detail  the  arguments  of  the  counsel. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  James  Hamilton,  the  elder,  being  seised  in 
fee,  of  the  land  which  is  the  subject  of  this  suit,  devised  it  to  his 
nephew,  William  Hamilton,  for  life,  remainder  to  the  first  son  of 
the  said  William,  for  life,  remainder  to  that  first,  and  every  other 
son  and  sons  of  the  said  first  son  of  the  said  William,  successively, 
according  to  priority  of  birth,,  in  tail  mail,  remainder  to  the  second 
son  of  the  said  William  Hamilton,  for  life,  remainder  to  the  first 
and  every  other  son  and  sons  of  the  said  second  son  in  tail  male  as 
aforesaid,  remainder  to  the  third,  fourth,  fifth  and  every  other  son 
and  sons  of  the  said  William  Hamilton,  successively  for  life, 
with  remainder  to  their  issue  in  tail  mail  as  aforesaid,  remainder 
to  the  testator's  nephew  Andrew  Hamilton  (elder  brother  of  the 
said  William  Hamilton,  and  heir  at  law  of  the  testator,)  for  life, 
with  remainders  to  the  first  and  every  other  son  and  sons  of  the 
said  Andrew,  for  life,  and  remainders  to  their  issues  in  tail  male, 
successively,  (precisely  in  the  same  manner  as  in  the  divises  to 
the  sons  of  the  said  William  Hamilton,)  remainder  to  the  heirs 
of  the  body  of  the  said  William  Hamilton,  remainder  to  the  heirs 
of  the  body  of  the  said  Andrew  Hamilton,  remainder  to  the  right 
heirs  of  the  testator.     The  will  was  dated  the  4th  March,  1776, 


March,  1823.]  OF  PENNSYLVANIA.  327 

(Lyle  and  others  v.  Richards.) 

and  the  testator  died  in  the  year  1783,  at  which  time,  his  ne- 
phews William,  and  Andrew,  were  both  living,  and  also  the  said 
Andrew 's  first  son,  James,  and  his  second  son  Andrew.  An- 
drew Hamilton,  the  father,  died  before  his  brother  William,  leav- 
ing issue,  two  sons  James  and  Andrew,  and  four  daughters.  Wil- 
Ham  Hamilton  died  without  issue,  having  never  been  married. 
After  his  death  James  Hamilton,  (son  of  Andrew,)  conveyed 
the  land  aforesaid,  by  deed  of  bargain  and  sale,  to  Doctor  Thomas 
Parke  in  fee.  To  this  deed,  Andrew  Hamilton,  (son  of  Andrew) 
was  a  party,  and  the  declared  intent  of  it  was,  to  make  the  said 
Thomas  Parke,  tenant  to  the  praecipe  in  a  common  recovery  which 
was  to  be  suffered  for  the  purpose  of  vesting  the  fee  simple  in  the 
said  James  Hamilton.  In  pursuance  of  this  intent,  a  common  re- 
covery was  suffered  in  the  Supreme  Court,  at  March  Term,  1814, 
with  treble  voucher,  in  which  James  Lyle  was  demandant  against 
the  said  Thomas  Parke,  tenant,  and  the  said  James  and  Andrew 
Hamilton,  (sons  of  Andrew)  were  severally  vouched.  On  the  5th 
April,  1814,  James  Hamilton  conveyed  one  third  of  the  premi- 
ses to  his  brother  Andrew  in  fee.  On  the  2d  May,  1814,  the  said 
James  and  Andrew  Hamilton  (sons  of  Andrew)  by  their  attor- 
ney, Thomas  Cadwallader,  conveyed  a  certain  part  of  the  premi- 
ses, to  Samuel  Richards,  the  defendant,  in  fee,  reserving  a  yearly 
ground  rent  of  280  dollars.  After  the  making  of  this  deed,  the 
said  James  Hamilton  died  without  issue,  having  never  been  mar- 
ried. The  question  for  the  consideration  of  the  court  is,  whether 
upon  the  facts  above  stated,  the  last  mentioned  deed  of  James 
and  Andrew  Hamilton,  vested  a  good  estate  in  fee  simple  in  the 
said  Samuel  Richards.  This  will  depend  chiefly,  upon  the  effect  of 
the  common  recovery  before  mentioned,  and  therefore  it  is  neces- 
sary to  consider,  in  the  first  place,  of  what  estates,  James  and  An- 
drew Hamilton  (sons  of  Andrew)  were  seised  at  the  time  of  that  re- 
covery. It  appears,  that  James  was  seised  of  an  estate  for  life 
in  possession,  with  contingent  remainders  to  his  sons  successively, 
in  tail  male,  and  that  Andrew  had  a  vested  remainder  for  life,  with 
contingent  remainders  to  his  sons  successively,  in  tail  male,  after 
which,  a  remainder  in  tail  general  was  vested  in  James,  wTith  re- 
mainder in  fee  simple  vested  in  the  said  James  and  Andrew,  and  their 
sisters.  When  I  say  that  James  Hamilton  had  a  vested  estate  tail, 
I  mean,  vested  in  interest,  not  in  possession.  I  incline  to  the 
opinion,  that  he  took  this  interest  by  way  of  descent  from  his  father, 
although,  for  the  purpose  of  my  argument,  it  is  not  material, 
whether  it  was  so  or  not.  For,  however  he  took  it,  he  had  the 
whole  estate  tail  in  him,  which  would  have  descended  from  his  fa- 
ther, supposing  his  father  to  have  first  taken  it.  James  was  heir 
of  the  body  of  his  father,  Andrew,  and  the  descent  from  him  (James) 
to  his  issue,  if  he  had  issue,  would  have  been  precisely  the  same, 
whether  he  came  to  the  estate  by  descent  or  by  purchase.  And  al- 
though the  estate  tail  was  not  vested  in  possession,  it  was  such  an 


328  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

interest  as  might  be  barred  by  a  common  recovery.     I  shall  give 
no  opinion,  (because  I  think  it  unnecessary,)  whether  previous  to 
the  suffering  of  the  recovery,  the  estate  for  life  of  James  Hamilton 
was  merged  in  his  estate  tail  general  in  remainder,  or  in  the  fee 
simple  expectant  on  the  estate  tail  which  was  vested  in  him,  (in  in- 
terest,) in  common  with  his  brother  and  sisters,  or  whether  the 
estate  for  life  in  Andrew,  interposed  between  James's  estate  for  life, 
and  his  inheritance  prevented  the  merger.     The  effects  of  the  com- 
mon recovery  will  afford  sufficient  ground  for  deciding  the  present 
question,  supposing  the  life  estate  of  James  not  to  have  been  pre- 
viously merged.     The  recovery  was  well  suffered.     Doctor  Parke 
was  a  good  tenant  to  the  praecipe,  by  virtue  of  the  conveyance  to 
him   from  James  Hamilton,  and  the   said  James,  and  his  brother 
Andrew,  were  regularly  brought  into  court  as  vouchees.     I  think  it 
unnecessary  also,  to  decide,  whether  the  suffering  of  the  recovery 
was,  in  itself,  a  forfeiture  of  the  life  estate  of  James  Hamilton. 
That  seems  to  be  a  point  not  well  settled,  because,  inasmuch  as 
James  Hamilton  had  in  him  an  estate  tail  in  remainder,  and  it  is 
supposed  by  some,   (and  Coventry  in  his   Treatise  on  Recoveries, 
p.  53,  thinks  it  the  better  opinion,)  that  he  might  rightfully  suffer 
a  recovery  for  the  purpose  of  barring  that  estate  tail.     It  is  certain, 
however,  that  one  effect  of  the  recovery  was,  the  distribution  of 
the  general  estate  tail  vested  in  James  Hamilton,  and  inasmuch  as 
James  became  seised  of  an  estate  in  fee  simple,  in  possession,  in 
conveyance  of  the  recovery,  it  seems  to  me  that  his  life  estate  was 
gone.     It  was  merged  in  that  fee  simple  newly  acquired,  and  there 
being  no  son  of  James  to  enter,  at  the  moment  his  life  estate  ex- 
pired, the  contingent  remainders  limited  to  his  children,  were  de- 
stroyed.    It  was  of  no  importance  whether  the  life  estate  of  James 
ceased,  by  forfeiture  or  otherwise.     Whenever  a  life  estate  becomes 
united  with  the  inheritance,  it  is  extinguished.     The  less  is  merged 
in  the  greater.    Consequently,  the  life  estate  of  James  Hamilton  being 
extinguished,  and  also  the  contingent  remainders  limited  to  his  is- 
sue, male,  his  brother  Andrew,  in  whom  an  estate  for  life  was  vest- 
ed, might  have  entered,  if  he  had  not  been  a  party  to  the  recovery. 
It  appears  also  from  the  facts  in  this  case,  that  the  life  estate  of 
James  Hamilton  was   at  an  end,  by  his  natural   death,  (indepen- 
dently of  all  considerations  of  the  common  recovery,)  and  he  having 
left  no   issue,  the  contingent  remainders  to  his  son,  were  out  of 
the  question,  and  there  would  have  been  nothing  to  bar  the  entry 
of  Andrew,  who  would  have  then  an  estate  for  life  in  possession, 
under  the  will  of  the  testator,  if  he  had  not  been  party  to  the  re- 
covery.    Then  supposing  the  estate  for  life  of  Andrew,  (the  son) 
to  be  extinguished  by  the  common  recovery,  all  the  contingent  re- 
mainders depending  on  it,  full,  and  the  estate  tail  in  James  being 
barred  by  the   same  recovery,  there  was  nothing  to  impeach  the 
fee  simple  in  James  which  was"  declared  to  be  in  him  by  the  de- 
scent to  lead  the  uses  of  the  recovery.     So  that  the  decision  of  the 


March,  1823.]  OF  PENNSYLVANIA.  329 

(Lyle  and  others  «.  Richards.) 

case  now  before  the  court,  depends,  mainly,  on  the  effect  of  the  re- 
covery on  the  estate  of  Andrew  Hamilton,  (son  of  Andrew.)  If  in 
consequence  of  his  coming  in  as  vouchee,  his  life  estate  was  de- 
stroyed, the  contingent  remainders  to  his  issue  male,  were  likewise 
destroyed,  because  at  that  time  he  had  no  issue  of  either  sex.  In 
Coventry  on  Common  Recoveries,  53,  it  is  said,  "  that  if  a  tenant  for 
life,  be  vouched  in  a  recovery,  he  will  certainly  lose  his  estate,  for 
that  would  be  a  disclaimer  on  records  In  support  of  this  assertion, 
Sir  Wm.  Pelham's  Case,  1  Co.  15,  is  cited,  and  comes  up  to  the 
point.  It  was  there  decided,  that  the  tenant  for  life,  who  was 
vouched  in  the  recovery  suffered  by  Sir  Wm.  Pelham,  lost  his 
estate,  and  the  immediate  entry  of  the  person  who  was  seised  of 
an  estate  tail  in  remainder,  was  lawful';  the  estate  tail  not  being 
barred,  because  the  persons  who  suffered  the  recovery  were  not 
seised  of  the  inheritance.  On  this  principle,  the  life  estate  of  An- 
drew Hamilton,  (son  of  Andrew,)  was  destroyed,  because  he  was 
party  to  the  deed  from  his  brother  James  and  others,  to  Doctor 
Parke,  in  which  the  uses  of  the  subsequent  common  recovery  were 
declared,  and  in  pursuance  of  that  deed  he  was  vouched,  and  be- 
came a  party  to  the  recovery.  I  think  there  cannot  be  a  doubt, 
that  his  life  estate  was  forfeited.  He  volunteered  in  the  common 
recovery.  For,  he  had  no  pretence,  of  an  estate  tail,  in  remain- 
der, to  bar,  as  his  brother  James  had.  He  disclaimed  the  title  un- 
der which  he  held  his  life  estate,  and  set  up  another,  adverse  to  it, 
which  he  warranted.  What  more  could  he  do  1  In  what  manner 
could  he  more  forcibly  and  efficaciously  destroy  the  title  under 
which  he  held,  than  by  his  disclaimer  and  warranty  on  record? 
Then,  the  life  estate  of  Andrew  Hamilton,  being  extinguished,  the 
contingent  remainders  dependent  on  it,  were  without  support,  and 
fell  to  the  ground,  and  the  general  estate  tail  with  the  fee  simple, 
in  remainder  after  it,  having  been  barred  by  the  recovery,  the 
estate  in  fee  simple  which  was  vested  in  James  Hamilton,  by  the 
said  recovery,  became  indefeasible,  and  the  title  conveyed  to  the 
defendant  by  James  and  Andrew  Hamilton,  was  good.  But  it  has 
been  strenuously  contended  by  the  counsel  for  the  defendant,  that 
the  principle  of  forfeiture  by  the  act  of  a  tenant  for  life,  however 
firmly  it  may  be  established  in  England,  is  not  suitable  to  our  in- 
stitutions, and  has  never  been  adopted  in  Pennsylvania.  Whether 
the  life  estate  of  Andrew  Hamilton  was  extinguished  by  forfeiture, 
or  otherwise,  is  immaterial.  And  I  have  no  doubt,  that  in  some 
way,  either  by  his  own  conveyance  and  warranty  on  record,  or  by 
estoppel,  if  not  by  forfeiture,  it  was  extinguished.  But  it  is  of  im- 
portance that  it  should  be  now  decided,  whether  the  law  of  forfei- 
ture, applied  to  life  estates  on  which  contingent  remainders  depend, 
exists  in  this  commonwealth.  Perhaps  I  might  be  excused  from 
doing  any  thing  more  on  the  present  occasion,  than  referring  to  the 
opinion  delivered  by  me,  on  this  point  in  the  case  of  Dunwoodie  v. 
Reed,  3  Serg.  fy  Raivle,  435.  But  I  think  it  better  to  make  some  ad- 
vol.  ix.  2  T 


330  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

ditional  remarks,  because  the  court,  which  consisted  but  of  two 
judges,  when  that  case  was  decided,  was  divided  in  its  opinion. 
Besides,  the  principle  is  of  great  and  general  concern,  and  we  have 
had  the  advantage  of  a  very  able  argument,  in  which  every  thing 
that  could  be  said,  on  either  side,  was  brought  forward.  The  de- 
fendant's first  position  is,  that  common  recoveries  have  no  force  in 
this  commonwealth,  except  what  is  derived  from  "  the  act  for  bar- 
ring estates  tail,"  passed  27th  January,  1749 — 50  ;  and  inasmuch 
as  this  act  gives  them  no  other  efficacy,  than  that  of  barring  estates 
tail,  they  cannot  work  a  forfeiture  of  an  estate  for  life.  In  exa- 
mining this  point,  I  will  consider  first,  whether  there  be  any  thing 
in  the  nature  of  a  common  recovery  unsuitable  to  the  condition  of 
the  first  settlers  in  Pennsylvania ;  second,  whether  in  fact,  it  was 
used  for  the  purpose  of  barring  estates  tail,  before  the  act  of  1750 ; 
third,  what  has  been  the  legal  tradition  on  this  subject. 

A  common  recovery  is,  in  form,  a  real  action  founded  on  a  right 
asserted  by  the  demandant  and  denied  by  the  tenant.  In  that  point 
of  view,  it  is  as  proper  for  us,  as  any  other  real  action.  But  a  re- 
covery suffered  by  consent,  has  always  been  considered  as  a  com- 
mon conveyance  and  assurance,  and  is  not  to  be  compared  to  a 
judgment,  or  proceeding,  in  any  other  suit  or  action.  Such  is  the 
language  of  Chief  Justice  Willes,  in  1  IVils.  73,  and  such  was  the 
opinion  of  the  Court  of  King's  Bench,  as  far  back  as  Lord  Coke's 
time,  1  Co.  15.  This  proceeding,  applied  to  estates  tail,  answered 
a  most  beneficial  purpose.  The  inconveniences  of  those  estates, 
were  felt,  in  England,  long  before  a  remedy  was  devised.  The 
House  of  Peers  adhered  to  the  statute  de  donis,  because  it  pro- 
tected their  estates  from  forfeiture,  and  transmitted  them,  unincum- 
bered with  debts,  to  the  heir.  It  was  vain,  therefore,  to  expect  re- 
lief from  Parliament.  In  this  situation,  the  matter  stood,  when  the 
courts  of  justice  encouraged  the  device  of  a  common  recovery,  for 
the  barring  of  estates  tail,  founded  on  a  fiction,  and  not  to  be  de- 
fended on  any  principle  of  sound  reason.  But  it  answered  a  good 
purpose,  and  the  end  justified  the  means.  The  law  was  as  well  set- 
tled, and  the  efficacy  of  common  recoveries,  in  barring  estates  tail, 
was  as  notorious  when  the  royal  grant  of  Pennsylvania  was  made 
to  William  Penn,  as  any  other  part  of  the  English,  law.  Our  an- 
cestors, who  came  out,  on  the  faith  of  the  charter,  brought  with 
them  the  common  law  in  general,  although  many  of  its  principles 
Jay  dormant,  until  awakened  by  occasion.  Some  parts  of  the 
common  law,  indeed,  would  have  been  altogether  unsuitable  to  the 
spirit  of  the  government -about  to  be  established  in  Pennsylvania, 
and  therefore  were  never  adopted.  But  there  was  no  inconveni- 
ence in  holding  real  property  by  the  same  kind  of  estates  as  in 
England.  Accordingly  we  hear  of  estates  in  fee  simple,  fee  tail, 
for  life,  and  for  years,  tenancy  by  the  curtesy,  and  in  dower,  &c, 
&c,  from  the  first  settlement  of  the  province.  We  hear,  also,  of 
the  English  modes  of  conveyance.     Bargain  and  sale,  lease  and 


March,  1823.]  OF  PENNSYLVANIA.  331 

(Lyle  and  others  v.  Richards.) 

release,  grants,  surrender,  &c.  &c.  Fines  and  feoffments,  are  men- 
tioned also,  in  several  of  our  early  acts  of  assembly,  as  modes  of 
conveyance  understood  to  be  legal,  although  I  believe  there  is  no  in- 
stance of  their  being  actually  used,  till  a  much  later  period.  The 
first  record  of  a  fine  which  I  have  been  able  to  discover,  is  in  the 
Court  of  Common  Pleas  of  the  County  of  Philadelphia,  in  the  year 
1752,  (Say  v.  Phillemore.)  There  might  have  been  a  question 
whether  it  was  expedient  to  introduce  estates  tail,  into  a  country 
where  the  division  of  the  estate  among  all  the  children,  on  the  death 
of  the  parent,  was  a  favourite  principle.  But  to  adopt  estates  tail, 
with  all  their  inconveniences,  and  at  the  same  time  to  reject  the  re- 
medy for  these  inconveniences,  would  have  been  a  defect  of  judg- 
ment not  to  be  attributed,  without  positive  proof,  to  William  Perm 
and  his  followers.  If  ever  there  was  a  country,  in  which  common 
recoveries  for  the  purpose  of  barring  estates  tail,  were  expedient, 
that  country  was  Pennsylvania.  This  leads  me  to  consider  whether 
in  fact  estates  tail  were  barred  by  common  recoveries  before  the 
act  of  1750.  Before  I  gave  my  opinion  in  the  case  of  Dunwoodie 
v.  Reed,  I  directed  the  records  of  the  Supreme  Court,  and  Court  of 
Common  Pleas  of  Philadelphia  county,  to  be  searched,  and  was 
informed  (as  mentioned  in  that  opinion,)  that  one  recovery  had 
been  suffered  in  the  Supreme  Court,  and  five  in  the  Court  of  Com- 
mon Pleas,  before  the  passing  of  the  act  for  the  barring  of  estates 
tail,  (27th  January,  1749 — 50.)  As  to  the  supposed  recovery  in 
the  Supreme  Court,  there  was  a  mistake.  I  have  since  examined 
the  records  of  that  court  myself,  and  it  appears,  that  the  record  of 
an  indictment  for  a  forcible  entry,  was  put,  by  accident,  into  the 
box  appropriated  to  common  recoveries,  and  the  clerk  who  made 
the  search  at  my  request,  mistook  it  for  a  common  recovery,  and 
so  reported  it.  I  think  it  probable  that  there  was  a  mistake  also, 
as  to  the  number  of  recoveries  reported  to  me  as  having  been  suf- 
fered in  the  Court  of  Common  Pleas  ;  since  the  industry  of  the 
counsel  concerned  in  the  present  cause  has  discovered  but  three  in- 
stead of  five.  The  mistake  however  is  not  very  material,  as  it  still 
appears  that  at  least  three  were  suffered  before  the  act  of  1750. 
There  may  have  been  others,  in  the  counties  of  Chester,  Bucks,  and 
Lancaster,  the  records  of  which  have  not  been  searched.  But  as  they 
do  not  appear,  no  argument  can  be  drawn  from  any  conjecture  con- 
cerning them.  The  counsel  for  the  defendant  concludes,  that  since 
no  records  have  been  produced,  of  common  recoveries  before  the 
year  1744,  and  only  three  before  making  of  the  act  of  assembly 
in  January,  1750,  that  mode  of  proceeding  could  not  have  been  con- 
sidered as  legal,  for  if  it  had,  there  would  have  been  no  need  of  the 
act  of  assembly.  And  in  further  support  of  his  opinion  the  coun- 
sel for  the  defendant  relies  on  what  is  reported  to  have  fallen  from 
the  mouth  of  Chief  Justice  Shipped,  in  the  case  of  Morris*  Lessee 
v.  Smith,  1  Yeates,  244.  The  words  are  these :  "  There  was  a 
time,  within  my  remembrance,  when  lawyers  held,  that  common 


332  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

recoveries  for  docking  estates  tail,  could  not  be  legally  suffered  in 
Pennsylvania,  and  the  first  that  was  suffered  will  be  found  among 
the  records  of  the  Common  Pleas,  in  my  hand  writing,  when  a 
young  student.  The  practice  however  was  not  generally  adopted 
till  the  passing  of  the  act  of  assembly  in  1750,  which  expressly  au- 
thorized it."  I  should  be  the  last  man  to  question  the  veracity,  or 
the  accuracy  of  Chief  Justice  Shippen,  for  whom  I  always  enter- 
tained the  most  affectionate  regard.  But  it  would  be  going  too 
far  to  conclude,  from  the  expressions  I  have  quoted,  that  common 
recoveries  were  not  legal  before  the  act  of  assembly.  When  Mr. 
Shippen  wrote  the  proceedings  in  the  recovery  mentioned  by  him, 
he  was  a  student  in  the  office  of  Mr.  Francis,  and  must  have  been, 
about  fifteen  years  of  age.  This  was  in  the  year  1745,  when  it  is 
supposed,  that  Mr.  Francis  was  the  most  eminent  lawyer  in  Penn- 
sylvania. At  that  time,  then,  it  could  not  with  propriety  have 
been  said,  to  be  held  by  lawyers,  that  a  common  recovery  could 
not  be  legally  suffered.  But  no  doubt,  Mr.  Shippen  had  heard, 
that  in  former  times  the  legality  of  the  practice  had  been  ques- 
tioned, and  that  may  be  considered  as  the  fair  amount  of  his  mean- 
ing. That,  however,  by  no  means,  proves  the  illegality  of  common 
recoveries.  We  may  account  for  their  not  being  introduced  at  an 
earlier  period  than  1745.  It  would  be  some  time  from  the  first  set- 
tlement of  the  province,  before  much  inconvenience  could  be  felt 
from  estates  tail,  and  when  it  was  felt,  if  the  estate  tail  was  created 
by  will,  (the  usual  source  of  such  estates,)  our  ancestors  had  a  very 
simple  way  of  getting  over  it,  that  is,  by  bringing  an  action  against 
the  executor  of  the  person  by  whose  will  the  entail  was  created, 
founded  on  some  real  or  supposed  debt  due  from  the  testator,  and 
selling  the  entailed  land  by  virtue  of  an  execution  on  the  judg- 
ment in  that  action.  By  this  mode  of  proceeding,  the  purchaser 
under  the  execution  came  in  of  a  title  paramount  the  estate  tail. 
But  there  is  another  reason  why  it  was  so  long  before  either  fines 
or  common  recoveries  were  brought  into  practice.  From  what  I 
have  been  able  to  learn,  of  the  early  part  of  the  history  of  Penn- 
sylvania, it  was  a  long  time  before  she  possessed  lawyers  of  emi- 
nence. There  were  never  wanting  men  of  strong  minds,  very 
well  able  to  conduct  the  business  of  the  courts  without  much  regard 
to  form.  Such,  in  particular  was  Andrew  Hamilton,  the  imme- 
diate predecessor  of  Mr.  Francis,  and  the  father  of  James  Ha- 
milton, the  testator.  But  Mr.  Francis  appears  to  have  been  the 
first  of  our  lawyers,  who  mastered  the  technical  difficulties  of  the 
profession.  His  precedents  of  pleadings  have  been  handed  down 
to  the  present  day,  and  his  Common  Pleas  book,  which  is  in  my  pos- 
session, is  an  evidence  of  his  great  industry  and  accuracy.  Having 
turned  his  attention  to  estates  tail,  he  was  of  opinion,  that  they 
might  be  barred  by  common  recoveries,  and  accordingly  introduced 
them.  His  example  was  followed  by  Ross  and  MLand,  also 
eminent  lawyers  of  that  day,  and  the  public  attention  was  thus 


March,  1823.]  OF  PENNSYLVANIA.  333 

(Ljle  and  olhers  v.  Richards.) 

drawn  to  the  subject.  It  was  the  anxious  desire  of  the  people, 
that  there  should  be  some  certain  mode  of  barring  estates  tail.  Al- 
though recoveries  had  been  suffered,  there  were  still  doubts  on  the 
subject,  and  recoveries  even  though  good,  were  attended  with  con- 
siderable expense.  Petitions  were  presented  to  the  legislature,  and 
it  is  highly  probable,  that  many  of  the  petitioners  wished  for  a  law 
authorizing  the  barring  of  estates  tail  by  a  common  deed  of  con- 
veyance. This  had  long  been  a  favourite  object,  for  we  find  that 
acts  had  been  passed  for  that  purpose,  in  1705,  and  1710,  the  last 
of  which  was  repealed  by  the  Queen  in  council,  in  1713.  See  Gal- 
loway's Ed.  Laws,  appen.  p.  9.  It  was  probably,  their  expe- 
rience of  the  unwillingness  of  the  Crown,  to  permit  the  barring  of 
estates  tail  by  a  common  deed,  which  induced  the  legislature  in 
1750,  to  confine  the  mode  of  barring  these  estates  to  fine,  and  com- 
mon recovery,  to  which  it  gave  the  same  efficacy  that  they  possess- 
ed in  England.  I  consider  this  act  of  1750,  as  no  more  than 
declaratory  of  the  law  which  existed  before.  It  removed  all  doubt, 
and  quieted  the  minds  of  the  people  on  an  important  subject.  To 
be  sure,  it  is  not  called  a  declaratory  act.  But  instances  are  nu- 
merous, of  acts,  declaratory  in  their  nature,  though  not  so  in 
name. 

As  to  the  suggestion,  that,  by  the  act  of  1750,  the  operation  of 
common  recoveries  was  confined  to  the  barring  of  estates  tail,  I 
can  perceive  no  ground  for  it.  The  sole  intent  of  the  act,  was  to 
provide  a  certain  mode  for  the  barring  of  estates  tail.  It  recites 
the  inconveniences  attending  these  estates,  and  then  gives  to  fines, 
and  common  recoveries,  the  same  efficacy  in  barring  them,  which 
they  possessed  in  England.  There  it  stops,  there  is  not  one  word 
as  to  the  operation  of  fines,  or  recoveries  on  any  other  subject.  It 
might  as  well  be  said,  that  the  operation  of  fines  was  confined  to 
estates  tail.  But  that  has  not  been  pretended.  That  the  operation 
of  common  recoveries  was  not  confined  to  the  barring  of  estates 
tail,  in  the  opinion  of  the  judges  of  this  court,  who  reported  to  the 
legislature  the  British  statutes  in  force  within  this  commonwealth, 
may  be  clearly  inferred,  from  their  reporting  the  Stat.  14,  Eliz. 
Ch.  8,  as  being  in  force,  which  was  made  for  the  avoiding  of  re- 
coveries suffered  by  collusion,  by  tenants  for  term  of  life.  It  is 
clear,  therefore,  that  if  the  operation  of  a  common  recovery  would 
destroy  the  estate  of  tenant  for  life,  by  forfeiture,  on  common  law 
principles,  there  is  nothing  to  gainsay  it  in  the  act  of  assembly. 
But  it  is  contended  also,  that  independently  of  the  act  of  assembly, 
forfeiture  is  founded  altogether  on  feudal  principles,  and  therefore, 
ought  not  to  be  adopted  in  Pennsylvania.  That  argument  would 
carry  us  too  far.  The  principles  of  the  feudal  system  are  so  inter- 
woven with  our  jurisprudence,  that  there  is  no  removing  them  with- 
out destroying  the  whole  texture.  When  our  ancestors  claimed  the 
benefit  of  the  common  law,  they  took  it  as  it  was,  except  such  parts  as 
were  manifestly  unsuitable  to  their  condition.     Now,  so  far  from  any 


334  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

thing  unsuitable  is  there  in  the  principle  of  forfeiture  applied  to  the 
case  before  us,  that  it  appears  to  me  to  accord  exactly  with  the  spirit 
of  our  constitution.     Pennsylvania  has  been  always  anxious  to  re- 
move obstructions  to  the  free  alienation  of  lands.     Contingent  re- 
mainders are  a  great  obstruction  to  free  alienation  ;  of  which,  nothing 
can  afford  a  stronger  proof  than  the  situation  of  the  Hamilton  es- 
tate.    Had  the  intention  of  the  testator  been  carried  into  full  effect, 
the  progress  of  the  city  of  Philadelphia  would  have  been  arrested 
for  half  a  century,  and  perhaps  much  longer,  in  a  very  interesting 
quarter,  and  for  what  purpose  ?     Certainly  for  no  other  than  the 
gratification  of  family  pride.     This  is  a  feeling  which  every  man 
has  a  right  to  indulge,  wTithin  the  limits  of  the  law.     But  no  man 
has  a  right  to  say,  that  all  principles  which  tend  to  restrain  his  in- 
clination, are  unreasonable,  and  unfit  for  the  country.       It  cannot 
be  denied,  that  the  suffering  of  a  common  recovery  by  tenant  for 
life,  works  a  forfeiture  of  his  estate  by  the  common  law,  and  con- 
sequently, destroys  all  remainders,  which  at  the  moment  of  forfei- 
ture, rest  in  contingency.     It  lies  upon  those  then,  who  deny  the 
existence  of  the  law  of  forfeiture  in  Pennsylvania,  to  prove  it.     I 
do  not  perceive,  that  any  such  proof  has  been  given.     The  case  of 
M'-Kee's  Les.  v.  Pfout,  3  Doll.  486,  has  been  relied  on.     The  ques- 
tion in  that  case  was,  whether  a  conveyance  in  fee  by  tenant  by 
the  curtesy,  by  deed  of  bargain  and  sale,  recorded  according  to  the 
act  of  assembly,  "  for  acknowledging  and  recording  of  deeds,"  passed 
in  the  year  1715,  was  a  forfeiture  of  the  estate.      The  argument  in 
favour  of  forfeiture  was  founded  on  that  part  of  the  act,  which  de- 
clares that  "  such  deeds  shall  be  of  the  same  force  and  effect  here, 
for   the  giving  possession  and  seisin,,  and   making  good   the    title 
and  assurances   of  lands,  tenements,  and   hereditaments,  as  deeds 
of  feoffment   with  livery  of  seisin,  or   deeds   inrolled  in   any   of 
the  courts  of  record  in    Westminster,  are,  or  shall  be,  in  the  king- 
dom of  Great  Britain."     It  was"  decided  that  there  was  no  for- 
feiture, because  it  was  not  the  intention  of  the  act  to  work  a  for- 
feiture.     These  are  the  expressions  of  C.  J.  M'Kean  :  Shippen, 
J.  was  of  the  same  opinion.     He  says,  "  that  in  allowing  to  deeds 
recorded,  the  same  force  and  effect  as  feoffments,  with  livery,  the 
intention  of  the  act  is  expressly  restricted  to  giving  possession  and 
seisin,  and  making  good  the  title  and  assurances  of  lands"     The 
reasons  assigned  by  these  judges  are  quite  satisfactory.     Indepen- 
dently of  the  act  of  assembly,  a  deed  of  bargain  and  sale  did  not 
work  a  forfeiture.     But  it  was  the  intention  of  the  act  to  facilitate  the 
mode  of  conveyance  by  bargain  and  sale,  and  not  to  create  a  for- 
feiture.    Therefore,  it  shall  not  be  so  construed  as  to  create  a  for- 
feiture.    What  would  be  the  effect  of  a  feoffment  with  livery,  is 
another  question,  and  I  give  no  opinion  on  it.     It  is  a  kind  of  con- 
veyance out  of  use  ;  indeed,  I  have  never  heard  of  one  in  Pennsyl- 
vania.     But   common   recoveries  have   been  in  great  use.     The 
counsel  for  the  plaintiff  have  furnished  us  with  lists  of  33  in  the 


March,  1823.]  OF  PENNSYLVANIA.  335 

(Lyle  and  others  v.  Richards.) 

Supreme  Court,  from  the  year  1763  to  1796,  and  175  in  the  Com- 
mon Pleas  of  the  county  of  Philadelphia,  from  September,  1750,  to 
December,  1798.  Of  these  they  suppose  that  at  least  seven  were 
for  the  purpose  of  destroying  contingent  remainders.  But  this  is 
a  point  not  easily  ascertained.  What  words  make  a  contingent  re- 
mainder, it  is  very  often  difficult  to  decide.  Many  recoveries  may 
have  been  intended  to  bar  estates  tail,  and  yet  in  fact,  may  have  de- 
stroyed contingent  remainders.  So  that  there  is  no  knowing  the  ex- 
tent of  the  mischief  which  may  be  done,  by  deciding  now,  that  a 
common  recovery  was  not  a  forfeiture  of  an  estate  for  life.  I  have 
taken  pains  to  ascertain  the  opinion  of  the  bar,  transmitted  to  us 
by  tradition,  from  the  year  1750.  And  on  that  point  I  have  no 
doubt.  A  tradition  of  this  kind  must  naturally  be  looked  for  in 
this  city,  where  in  1750,  and  long  afterwards,  the  principal  lawyers 
resided.  I  have  often  heard  the  subject  mentioned  by  those  who 
are  now  no  more,  but  never  heard  the  forfeiture  doubted.  I  will 
mention  one  fact,  which  goes  far,  in  showing  the  opinion  of  the 
old  lawyers.  1  know  from  good  authority,  that  Mr.  Chew,  who 
was  chief  justice  at  the  time  of  the  revolution,  gave  to  the  testator 
James  Hamilton,  the  draft  of  a  will,  or  part  of  a  will,  in  which 
was  inserted  a  clause,  appointing  trustees  for  supporting  contingent 
remainders.  Mr.  Hamilton,  not  understanding  the  necessity  of 
this  provision,  omitted  it,  and  hence  arises  the  present  dispute. 
We  may  see  then,  that  in  Mr.  Chew's  opinion,  the  support  of  trus- 
tees was  necessary.  Now  I  have  been  informed,  that  he  studied 
the  law  under  the  first  Andrew  Hamilton,  and  we  know  that  Mr. 
Francis  succeeded  Mr.  Hamilton,  and  Mr.  Chew  succeeded  Mr. 
Francis,  in  the  office  of  Attorney  General,  and  in  professional  emi- 
nence. So  that  I  think  we  have  pretty  good  evidence  of  the  opi- 
nion of  this  bar,  from  about  the  year  1750  to  1776.  When  we  are 
inquiring  whether  a  certain  mode  of  conveyance,  usual  in  Eng- 
land, was  formerly  introduced  in  Pennsylvania,  it  is  very  much  a 
matter  of  fact,  and  a  fact  which  must  have  been  within  the  know- 
ledge of  professional  men.  So  that,  in  the  absence  of  positive  proof, 
great  regard  is  due  to  the  general  understanding  of  the  profession. 
In  this  point  of  view,  there  is  great  weight  in  the  opinion  of  the  late 
Mr.  Edward  Tilghman,  under  whose  direction,  the  common  re- 
covery now  in  question  was  suffered.  His  legal  abilities  are  well 
known  to  the  gentlemen  of  this  bar,  but  the  circumstance  which 
attaches  peculiar  importance  to  his  opinion  in  this  case  is,  that  he 
was  in  the  practice  of  the  law  in  the  year  1774,  and  in  habits  of  fa- 
miliar acquaintance  with  the  lawyers  of  that  day,  several  of  whom 
were  at  the  bar  in  the  year  1750.  It  is  worthy  of  remark,  that  in 
the  case  of  JS'PKee  v.  Pfout,  mentioned  before,  where  the  counsel 
for  the  plaintiffargued  against  the  forfeiture,  it  was  taken  for  granted 
by  them,  that  a  feoffment  with  livery,  would  have  occasioned  a 
forfeiture,  nor  did  any  intimation  to  the  contrary  fall  from  the 
court.     Now,  certainly  a  feoffment  with  livery,  could  not  have 


336  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

more  force  than  a  common  recovery.  The  late  Judge  Yeates, 
in  his  opinion  in  the  case  of  Findlay's  Lessee  v.  Riddle,  3  Binn. 
154,  says,  "that  contingent  remainders  may  be  preserved  from 
being  defeated  before  they  come  in  use ;"  meaning,  as  I  apprehend, 
that  they  might  be  defeated  in  the  usual  manner,  by  such  a  convey- 
ance, or  assurance  as  would  incur  a  forfeiture  of  the  estate  for  life, 
and  that  they  might  be  preserved  by  the  appointment  of  trustees, 
for  the  purpose  of  entering  in  case  of  forfeiture,  and  holding  as 
long  as  the  remainder  was  in  contingency.  For  my  own  part, 
having  given  to  this  interesting  subject,  all  the  consideration  which 
it  merits,  I  have  been  led  to  the  conclusion,  that  the  common  law 
doctrine  of  forfeiture,  for  the  purpose  of  barring  contingent  re- 
mainders, is  congenial  to  the  spirit  of  our  constitution,  and  there- 
fore, in  principle,  it  ought  to  be  extended,  as  in  fact,  it  has  been 
extended  to  the  state  of  Pennsylvania.  And  upon  the  whole  of 
this  case,  I  am  of  opinion,  that  the  common  recovery  vested  in 
James  Hamilton,  the  younger,  an  estate  in  fee  simple,  in  the  pre- 
mises, so  as  to  enable  him  to  grant  one-third  thereof  to  his  brother 
Andrew,  in  fee,  and  to  enable  them  both  to  convey  a  good  estate 
in  fee  to  Samuel  Richards  the  defendant. 

Gibsox,  J.    When  the  recovery  was  suffered,  the  existing  inte- 
rests under  the  will  stood  thus :  An  estate  for  life  in  James,  vested 
in  possession,  with  successive  contingent  remainders  in  tail  male  to 
his  first  and  other  sons :  an  estate  for  life  in  Andrew,  vested  in  in- 
terest, with  successive  contingent  remainders  in  tail  male  to  his  first 
and  other  sons :  remainder  in  tail  to  James,  either  vested  or  con- 
tingent :  reversion  in  fee,  to  the  right  heirs  of  the  testator.     It  is 
argued  by  counsel,  that  the  remainder  in  tail  to  James,  is  contin- 
gent ;  and  if  that  be  so,  it  disposes  of  the  point,  that  the  preceding 
contingent  remainders  limited  to  the  sons  of  Andrew  were  barred 
by  the  union  of  the  several  vested  parts  of  the  fee  in  James  ;  and 
this,  on  the  ground  of  there  being  no  estate  tail  in  existence  which 
could  be  the  subject  of  a  common  recovery  :  which  would  reduce 
the    controversy  to  the  question  agitated  in  Dunwoodie  v.  Reed, 
whether  a  recovery  can,  for  any  purpose,  have  an  effect,  except 
as  an  instrument  in  barring  an  estate  tail.     With  respect  to  that,  I 
hold  the  same  opinion  now,  which  I  did  then,  and  shall  say  some- 
thing further  with  respect  to  it,  in  the  sequel.     But  I  see  no  reason 
to  doubt,  that  the  estate  tail  limited  to  the  heirs  of  Andrew,  the  father 
of  James  and  Andrew,  and  the  nephew  of  the  testator,  was  vested 
at  all  events,  at  the  death  of  Andrew  the  father.     It  is  unnecessary 
to  inquire  whether  the  words  by  which  an  inheritable  estate  is  de- 
vised to  his  heirs,  are  to  be  taken  as  words  of  limitation  by  reason 
of  the  devise  of  a  prior  freehold  estate  to  himself  (although  I  in- 
cline to  think  they  ought;)  because  it  is  clear,  that  at  his  death,  his 
son  James,  answering  the  description  in  the  devise,  took  an  imme- 
diate vested  interest  under  it,  either  by  descent  or  purchase :  which 
is  sufficient  for  the  purpose  of  the  argument.     The  suggestion,  that 


March,  1823.]  OF  PENNSYLVANIA.  337 

(Lyle  and  others  i\  Richards.) 

if  .Andrew  the  father  never  took  an  interest  in  this  estate  tail,  and 
it  be  considered  as  having  for  the  first  time  vested  in  his  son  James, 
Andrew  the  brother  of  James  could  never  inherit  from  him,  and 
that  to  let  him  in,  there  would  have  to  be  successive  estates  tail 
limited  to  the   sons  of  Andrew  the  father,  is  plausible  but  with- 
out foundation.     Mandevilk's  case,  1  Inst.  26,  is  exactly  in  point, 
and  proves  that  Andrew  might  take ;  and  whether  by  descent  from 
the  ancestor  although  he  had  nothing,  or  by  purchase  as  answering 
the  description  in  the  devise,  is  immaterial.     The  matter  is  discuss- 
ed in  a  note  in  Feame  on  Remainders,  82,  where  the  law  is  con- 
sidered to  be  settled,  although  on  principles  which  are  not  easily 
discoverable.     Then  as  there  was  a  vested  estate  tail  to  be  barred, 
the  common  recovery  was  consequently  a  proper  form  of  convey- 
ance even  under  my  construction  of  the  act  of  1750,  and  had 
the  effect  of  enlarging  the  estate  tail  to  a  fee,  and  of  uniting  it  with 
the  estate  for  life  of  James  under  the  deed  to  lead  the  uses.     This 
even  without  any  participation  by  Andrew  would  leave  only  his 
estate  for  life  outstanding  ;  and  the  question  is  whether  his  joining 
in  the  covenants  in  the  deed  to  lead  the  uses,  and  suffering  himself 
to  be  vouched  without  counterpleading  the  warranty,  and  vouching 
over  the  common  vouchee,  destroys  his  estate  in  favour  of  James, 
under  the  deed  to  lead  the  uses :  and  I  have  no  doubt  that  it  does. 
Where  a  common  recovery  is  a  legal  mode  of  conveyance,  what- 
ever may  be  thought  of  the  construction  of  the  act  of  Assembly  in 
other  respects,  it  must  necessarily  have  all  its  common  law  effects, 
on  the  estates  of  those  who  join  in  it.     It  is  therefore  unnecessary 
to  inquire  whether  Andrew's  estate  passed  by  surrender,  release, 
or  in  any  other-  manner :  it  was  clearly  extinguished  by  his  war- 
ranty, which  estops  him  from  ever  claiming  it ;  for  all  are  estopped 
by  a  recovery  who  cannot  falsify  it,  whether  they  come  in  as 
vouchees  or  were   originally  parties.     Pells  v.  Brown,  Cro.  Jac. 
592.      It    is   impossible    therefore   to  avoid   the    conclusion   that 
Andreufs  estate  was  barred  ;   and  if  so,  James's  life  estate  being 
merged  in  the  fee,  which  could  be  prevented  only  by  the  existence 
of  Andrew's  estate,  the  contingent  remainders  limited  to  the  sons 
of  Andrew,  are  gone.     If  there  had  not  been  a  vested  estate  tail 
in  the  way,  the  same  union  of  the  existing  vested  parts  of  the  fee, 
might  have  been  produced  by  any  form  of  conveyance  either  un- 
der the  statute  of  uses,  or  at  the  common  law,  but  as  there  was 
such  an  estate  tail,  the  only  form  of  conveyance  which  could  pro- 
duce such  a  union,  (I  do  not  speak  of  a  deed  acknowledged  in  court 
under  our  act  of  Assembly,)  was  a  common  recovery.     The  effect 
of  this   union  in  barring  contingent  remainders  is   so   explicitly 
stated  and  so  clearly  explained  by  Mr.  Feame  as  to  preclude  any 
attempt  to  render  it  clearer. 

On  the  question  whether  common  recoveries  were  originally 
brought  here  by  our  ancestors  as  a  part  of  the  common  law,  or  were 
introduced  for  a  special  purpose  by  the  act  of  1750, 1  have  already 

vol.  ix.  2  TT 


338  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richard?.) 

expressed  my  opinion  in  Dunwoodie  v.  Reed ;  and  as  I  have  disco- 
vered nothing  in  the  argument  here  to  shake  my  confidence  in 
that  opinion,  but  on  the  contrary,  much  to  confirm  me  in  it,  I  shall 
state  the  reasons  that  weigh  with  me,  somewhat  more  at  length 
than  I  did  in  the  case  just  alluded  to. 

A  position  has  been  taken  by  counsel,  which,  in  its  full  extent,  I 
think  no  one  will  concede  ;  that  on  the  arrival  of  our  ancestors  in 
the  province,  the  whole  common  law  of  England  was  cast  on  them, 
as  an  inheritance  is  cast  on  the  heir,  without  power  on  their  part  to 
prevent  its  descending  on  them  ;  the  whole  or  particular  parts  to  be 
entered  on  and  occupied  in  actual  use,  as  occasion  might  from  time 
to  time  require.     It  is  undoubtedly  true  as  a  general  rule,  subject 
however  to  exceptions,  that  the  first  settlers  of  a  colony  carry  with 
them  the  laws  and  usages  of  the  mother  country :  nor  did  this  rule 
require  the  sanction  attempted  to  be  given  to  it  in  the  sixth  section 
of  the  charter  to   William  Penn,  which  declared  that  the  laws  for 
regulating  property  and  punishing  felonies  should  be  and  continue 
in  Pennsylvania,  the  same  as  they  should  be,  for  the  time  being, 
by  the  general  course  of  the  law  in  England  ;  until  they  should  be 
altered  by  Mr.  Penn,  and  the  freemen  of  the  province.     This  pro- 
vision was  merely  directory  or  declaratory  of  a  general  principle 
which  existed  before.     But  to  a  greater  or  less  extent,  there  neces- 
sarily exists  in  every  country  a  species  of  legislation  by  the  peo- 
ple themselves,  which  in  England  and  in  this  county  is  the  founda- 
tion of  the  common  law  itself,  or  in  other  words  general  custom  ob- 
taining by  common  consent :  and  this  sort  of  legislation  will  be 
more  freely  used  in  the  infancy  of  a  colony,  where  an  abrupt  change 
of  the  circumstances  and  condition  of  the  colonists  must  require  a 
correspondent  alteration  of  the  laws  and  usages  of  the  mother  coun- 
try to  fit  them  to  actual  use,  than  in  a  country  whose  jurisprudence 
has  been  the  gradual  product  of  time  and  experience.     In  the  infancy 
of  this  colony  it  produced  not  only  a  modification  of  some  of  the  rules 
of  the  common  law,  but  a  total  rejection  of  many  of  the  rest.     In 
Carson  v.  Blazer,  2  Binney,  484,  it  is  said  by  Judge  Yeates,  whose 
personal  experience  extended  half  a  century  back,  and  who  was  well 
skilled  in  the  earlier  traditions  of  the  province,  that  the  uniform  idea 
had  been  that  only  such  parts  of  the  common  law  as  were  applicable 
to  the  local  situation  of  the  colonists  were  received  by  them,  and  in 
that  case  it  was  held  by  the  whole  court  that  the  common  law  dis- 
tinction with  respect  to  rivers  that  are  navigable  and  those  which 
are  not,  is  inapplicable  in  this  state.     And  in  Stocver  v.    Whit- 
man, 6  Binn.  420,  it  was  declared  by  Chief  Justice  Tilghman, 
in  delivering  the  opinion  of  the  court,  that  the  rule  of  common  law 
which  renders  seisin  in  the  grantor  necessary  to  the  validity  of  a 
conveyance  of  land,   was  never  adopted  here.     So,   there  is  no 
law   in  Pennsylvania  by  which  the  property  in  goods  is  divested 
from  the  true  owner  by  a  sale  in  market  overt.     Hossack  v.  Wea- 
ver, 1    Yeates,  478,  Hardy  v.   Metzgar,  2    Yeates,  347,  Easton  v. 


March,  1823.]  OF  PENNSYLVANIA.  339 

(Lyle  and  others  v.  Richards.) 

Worthington,  5  Serg.  $  Rawle,  130.     On  the  ground  of  at  least 
a  modification  of  a  rule  of  the  common  law  rest  the  rig-lit  of  a  tenant 
to  the  way  going-  crop;  the  power  of  a  husband  to  affect  his  wife's 
right  of  dower  by  judgment  or  mortgage  ;  and  the  right  of  a  sheriff 
who  has  levied  household  furniture  to  suffer  it  to  remain  in  the  pos- 
session of  the   debtor  without  impairing  the  lien  of  the  execution. 
I  will  add  only  one  instance  more  which  at  present  occurs  to  me. 
At  the  last   term  for  the  western   district,  it  was  held  by  this  court 
in  Little  v.  Gordon,  8  Serg.  $  Rawle,  533,  that  the  common  law 
rule  of  responsibilities  of  common  carriers,  is  inapplicable  to  carrying 
for  hire  on  our  fresh  water  rivers  ;  although  it  is  admitted  to  govern 
in  cases  of  carrying  by  land.     Now  this  was  not  a  recognition  of  a 
new  law  but  of  the  common  consent  of  the  country  in  opposition  to 
the  alleged  existence  of  an  old  one.     I  do  not  say  that  non  user 
alone  ought  to  be  considered  as  conclusive  evidence  of  universal 
assent,  for  we  have  a  modern  instance  of  assize  of  nuisance  having 
been  maintained;  dormit  aliquando  lex,  moritum  nunquam ;  but 
where  to  a  clear  and  unqualified  non  user  for  more  than  half  a  cen- 
tury, we  find  subjoined   positive  acts  of  the  whole  community  evin- 
cing a  disclaimer  of  the  existence  of  a  particular  law,  it  ought  to  be 
conclusive  :  for  it  is  not  to  be  credited  that  a  law  can  be  in  force,  and 
its  existence  at  the  same  time  be  a  secret  to  every  member  of  the 
community,  whether    lettered    or  layman.     Now   what  is  the  evi- 
dence here?     The  most  diligent  search  has  not  produced  a  single 
precedent  of  a  common  recovery  from  the  settlement  of  the  pro- 
vince down  to  the  year  1744.     If  this  part  of  the  inheritance  was 
cast  on  our  ancestors,  why  did  they  not  enter  on  it,  and  use  it  ? 
Had  they  no  wants  to  satisfy  ?     We  shall  see.     As  early  as  1705, 
and  probably  much  earlier,  entails  had  become  common,  and  the 
mischiefs  arising  from  them  had  begun  to  be  felt ;   for  in  that  year 
the  general  assembly  passed  an  act  for  barring  entails  by  any  deed 
proved  or  acknowledged  and  recorded  :  a  mode  something  like  the 
one  they  adopted  shortly  after  they  became  their  own  masters,  and 
which  is  in  force  at  this  day.     This  law  was  repealed,  it  would  seem 
by  the  Queen  in  council.     In  1710,  the  necessity  of  having  some 
means  of  avoiding  the  pernicious  consequences  of  perpetuities,  in- 
duced the  assembly  again  to  press  the  matter  on  the  attention  of  the 
crown,  and  a  new  act  containing  a  similar  provision  was  passed,  pre- 
sented, and  rejected  by  the  Queen  and  council.     Whether  these  acts 
suggested  to  Sir   William  Blackstone  the  propriety  of  abolishing 
common  recoveries  even  in  England,  which  he  recommends  in  his 
commentaries,  vol.  2,  page  361,  I  will  not  pretend  to  say.     But  un- 
der the  accumulating  evils  of  perpetuities  the  forbearance  of  the  as- 
sembly and  of  the  people  for  forty  years  afterwards,  to  have  re- 
course to  common  recoveries,  is,  to  my  mind  satisfactory  evidence 
of  a  determination  that  they  were  not  and  should  not  be  in  force  in 
the  province.     It  establishes  beyond  controversy  the  truth  of  Chief 
Justice  SHipr-EN's  assertion,  that  there  was  a  time  when  there  was 


340  SUPREME  COURT  [Philadelphia 

(Lyle  and  others  v.  Richards.) 

but  one  opinion  on  the  subject.  It  is  unnecessary  to  seek  for  the 
foundation  of  this  opinion  ;  whether  it  rested  on  a  supposition  that 
the  courts  had  not  jurisdiction  of  real  actions,  or  that  this  sort  of 
assurance  was  not  adapted  to  the  habits  and  circumstances  of  the 
people,  it  is  sufficient  that  it  prevailed  and  was  entertained  by  the  le- 
gislature, the  bench,  the  bar,  and  the  people.  No  one,  however, 
who  has  attended  to  the  legal  history  of  the  province  can  help  see- 
ing that  it  arose  from  an  utter  repugnance  to  this  part  of  the  com- 
mon law.  In  the  laws  agreed  on  in  England  we  find  the  colonists 
expressly  stipulating  for  the  right  of  appearing  and  defending  their 
causes  in  person,  and  exacting  as  a  fundamental  condition,  "that 
all  pleadings,  processes,  and  records  in  courts  shall  be  short  and  in 
English,  and  in  an  ordinary  and  plain  character,  that  they  may 
be  understood,  and  justice  speedily  administered."  1  Dall.  Laws, 
app.  22.  But  this  distaste  to  form  was  not  confined  to  proceedings 
in  the  courts.  By  an  act  passed  in  1683,  it  was  declared,  "  that  for 
avoiding  long  and  tedious  conveyances  and  the  many  contentions 
which  may  a?-ise  about  the  variety  of  estates,  all  grants  of  estates 
shall  be  either  of  the  inheritance  ;  or  for  lives ;  or  for  years,  any 
number  not  exceeding  fifty  years  ;  which  grants  shall  be  thus  con- 
tracted in  these  words  :"  and  then  follows  a  form  of  conveyance, 
which,  as  it  is  short,  and  discloses  the  temper  of  the  times  better 
than  any  observation  of  mine  could  do,  I  shall  give  word  for  word. 
"A.  B.  the day  of in  the  year  according  to  the  Eng- 
lish account  from  him,  his  heirs  and  assigns,  grants  his 

(here  describe  the  bounds)  with  all  its  appertunances,  lying  in  the 

county  of  r  containing acres  or  thereabouts,  to  C.  D. 

and  his  heirs  (if  in  fee)  or  to  E.  F.  for  his  life,  (if  for  life)  or  to  G. 
H.  for  one  hundred  years  if  J.  K. :  L.  M. :  N.  O.  shall  so  long  live, 

or  to  P.  Q.  for  fifty  years,  for  the  consideration  of pounds  in 

money  paid,  and  of  the  yearly  rent  to  be  paid  to  A.  B.  In  witness 
whereof  he  sets  his  hand  and  seal.  Sealed  and  delivered  in  the 
presence  of  R.  S.  T.  Acknowledged  in  open  court,  and  certified  un- 
der the  clerk's  hand  and  seal,  the day  of and  registered 

the day  of ."    Now  with  this  aversion  to  the  intricacy  and 

technical  obscurity  of  conveyances  under  the  statute  of  uses,  or  even 
at  the  common  law,  I  think  it  will  be  conceded  the  colonists  must 
have  had  a  perfect  horror  of  common  recoveries  with  their  vouchers 
to  warranty,  their  recompense  in  value,  their  conveyances  to  make  a 
tenant  to  the  praecipe,  their  deeds  to  lead  or  declare  uses;  and  many 
other  matters  which  are  as  purely  technical,  and  even,  to  profession- 
al men  as  difficult  of  comprehension  as  any  other  part  of  the  law. 
It  was  said  with  great  truth  by  Chief  Justice  Welles  in  delivering 
the  opinion  of  the  court  in  Martin  v.  Slrachan,  1  JVils.  73,  that 
Mr.  Piggot,  as  able  a  conveyancer  as  any  man  of  the  profession,  had 
confounded  himself  and  every  body  else  who  read  his  book,  by  en- 
deavouring to  give  reasons  for  common  recoveries;  and  that  when 
men  do  so,  they  run  into  absurdities,  and  the  whole  of  what  they 


March,  1823.]  OF  PENNSYLVANIA.  341 

(Lyle  and  others  v.  Richards.) 

say  is  unintelligible  jargon  and  learned  nonsense.  In  latter  days 
this  attempt  is  abandoned,  and  the  ablest  lawyers  say  a  com- 
mon recovery  is  only  a  formal  mode  of  conveyance  by  which  a 
tenant  in  tail  is  able  to  convey  a  fee  simple.  2  Com.  36.  The  truth 
is  these  feigned  recoveries  although  not  only  defensible,  but  under 
the  circumstances  of  the  times,  highly  meritorious  when  restrained 
to  the  objects  for  which  they  were  devised,  were  originally  a  mere 
juggle  to  elude  the  operation  of  the  statute  de  donis;  but  as  the 
courts  attributed  to  them  most  of,  if  not  all,  the  properties  of  re- 
coveries on  title,  and  consequently  permitted  them  to  be  made  the 
instruments  of  barring  other  estates  than  entails,  or  at  least  of  turn- 
ing them  to  a  right,  they  were,  in  this  respect,  insufferably  mis- 
chievous. If,  then,  it  be  true,  as  is  said  in  the  books,  that  our  an- 
cestors brought  with  them  only  such  parts  of  the  common  law  as 
suited  their  peculiar  circumstances,  they  undoubtedly  left  this  part 
of  it  behind  them.  There  were  at  an  early  day  very  few  lawyers 
in  the  province,  and  if  we  judge  from  the  loose  practice  and  im- 
perfect manner  of  making  up  judicial  records  which  they  have  en- 
tailed on  us,  the  best  of  these  few  unskilled  in  the  forms,  whatever 
may  have  been  their  knowledge  of  the  principles,  of  the  law.  Fear 
therefore  for  the  security  of  titles,  from  blunders  in  the  manner  of 
conducting  the  proceeding,  would  naturally  induce  the  people  to 
reject  this  mode  of  conveyance.  The  popular  feeling  must  natu- 
rally have  found  its  way  into  the  general  assembly  ;  and  we  accord- 
ingly find  it  was  not  till  after  forty  years  from  the  last  of  their  at- 
tempts to  establish  a  mode  of  their  own,  and  after  it  was  rendered 
certain  that  nothing  better  could  be  obtained  that  the  legislature 
consented  to  adopt  this  method  of  barring  entails,  which  was  forced 
upon  them  by  the  necessities  of  the  people  and  the  obstinacy  of 
the  crown.  Three  recoveries  with  or  without  law,  had  been  ac- 
tually suffered  within  the  space  of  six  years  ;  petitions  from  seve- 
ral counties  were  presented — some  of  them  reciting  these  recoveries 
and  stating  that  the  people  were  in  doubt  and  apprehension  as  to  the 
title — others  averring  that  there  existed  no  effectual  mode  of  bar- 
ring entails — but  all  concurring  in  a  prayer  that  something  might  be 
done,  4  vol.  of  votes  of  assembly ,  p.  99  :  and  the  legislature,  fear- 
ful, as  it  seems  to  me,  that  the  practice  having  taken  root,  mio-ht 
grow  into  a  law,  and  recoveries  if  left  to  themselves,  have  all  their 
common  law  consequences  of  divesting  vested  estates ;  of  creating 
forfeitures,  and  thereby  defeating  contingent  ones  ;  of  creating  tor- 
tious estates  in  fee  simple  in  those  who  before  had  no  pretence  of 
right — objects  for  which  they  were  originally  not  designed — and 
of  thus  making  havoc  of  the  estates  of  innocent  men,  not  parties 
to  them;  adopted  and  established  common  recoveries  as  a  mode  of 
assurance,  but  specially  and  purposely  confined  their  operations  to 
the  barring  of  entails. 

If  then  recoveries  were  newly  introduced  by  the  act  of  1750,  and 
not  as  a  part  of  the  common  law,  the  consequence  is  inevitable  that 


342 


SUPREME  COURT 


[Philadelphia, 


(Lyle  and  others  v.  Richards.) 

for  all  other  purposes  than  the  barring  of  entails,  they  are  altogether 
inoperative,  either  directly  or  indirectly  ;  and  that  when  suffered  by 
a  tenant  for  life,  they  are  an  unmeaning  ceremony,  producing  no 
legal  results.  The  three  cases  of  recoveries  suffered  during  the  six 
years  immediately  preceding  the  act,  all  of  which  were  advised  by 
Mr.  Francis,  an  able  lawyer,  and  by  two  other  gentleman,  whose 
opinions  are  not  entitled  to  the  same  weight,  ought  not  to  be  con- 
sidered as  having  settled  the  law,  because  it  had  been  previously 
settled  in  a  different  way  by  the  universal  acquiescence  and  assent 
of  the  people  during  a  period  of  seventy  years.  I  readily  admit, 
that  if  no  act  of  assembly  had  been  passed  on  the  subject,  the  prac- 
tice would  have  been  continued  on  the  footing  of  the  common  law, 
because  the  necessities  of  the  country  were  irresistible  ;  and  as  by 
this  time,  a  countless  number  of  titles  would  have  depended  on  it, 
the  courts  would  have  been  precluded  from  inquiring  whether  in 
its  origin  it  were  right  or  wrong:  the  maxim  of  communis  error, 
would  have  been  applicable  to  it  with  conclusive  force.  But  the 
legislature  taking  the  matter  up  on  the  foot  of  the  practice  as  it  then 
stood,  had  a  right  to  lay  their  hands  on  it,  and  while  it  was  yet  in 
the  gristle,  to  bend  it  and  mould  it  at  their  pleasure.  That  they 
thought  they  were  introducing  recoveries  for  the  first  time,  and  not 
enacting  a  declaratory  law,  is  clear,  not  only  from  the  particular 
expressions  which  they  used,  but  from  the  fact  of  their  having 
thought  it  necessary  to  render  previous  recoveries  valid  by  a  spe- 
cial provision  ;  which  would  have  been  altogether  unnecessary  if 
the  object  had  been  to  declare  that  common  recoveries  had  all  along 
been  in  force  by  virtue  of  the  common  law.  I  am  aware  that  a 
declaratory  statute,  made  in  the  affirmative,  without  negative  words 
express  or  implied,  does  not  take  away  those  parts  of  the  common 
law  which  are  not  particularly  recognised  by  the  statute ;  and  con- 
sequently, that  the  latter  should  be  construed  as  it  was  before  the 
recognition  by  the  legislature,  Co.  Lit.  115  a.  note  8  and  9.  But 
this  rule  holds  only  as  to  statutes  avowedly  predicating  the  exis- 
tence of  the  common  law.  I  grant  if  common  recoveries  had  been 
in  force  here  for  all  purposes,  this  act  containing  only  affirmative 
words  would  not  have  the  effect  of  restraining  their  operation  to 
the  barring  of  entails :  but  the  very  question  is,  were  they  so  in 
force?  Now,  if  that  were  even  doubtful,  what  ought  the  construc- 
tion to  have  been  if  this  question  had  presented  itself  immediately 
after  the  passing  of  the  act  ?  I  shall  hereafter  inquire  whether  sub- 
sequent circumstances  call  for  a  different  construction  now  ? 

That  the  actual  intention  of  the  legislature  was  to  restrain  reco- 
veries to  the  barring  of  entails,  I  flatter  myself,  I  have  shown  from 
the  history  of  their  introduction.  But  there  are  other  considerations 
which  ought  to  induce  us  to  lean  to  any  construction  that  would 
produce  that  result.  Since  the  Stat.  14,  Eliz.  c.  8,  the  only  ground 
on  which  a  recovery  suffered  by  a  bare  tenant  for  life  in  favour  of 
a  stranger,  is  a  bar  of  a  contingent  remainder,  is  that  such  reco- 


March,  1823.]  OF  PENNSYLVANIA.  343 

(Lyle  and  others  v.  Richards.) 

very  is  a  forfeiture  of  his  estate  in  favour  of  him  who  has  the  next 
vested  remainder.     At  the  common  law,  a  recovery  against  a  te- 
nant for  life  with  voucher  on  a  true  warranty  and  recovery  in  value, 
bound  even  a  vested  remainder,  because  as  it  is  said,  the  particular 
estate  and  the  remainder  are  in  contemplation  of  law  but  one  estate  ; 
and  as  one  warranty  may  extend  to  both,  the  recompense  in  value 
shall  extend  to  both  :  and  a  recovery  not  on  a  true  warranty,  but  by 
covin,  if  it  did  not  bar  him  in  remainder,  would  at  least  toll  his 
right  of  entry  :  which  was  pretty  near  the  same  thing,  as  the  prose- 
cution of  a  real  action  was  a  troublesome  and  expensive  matter. 
Jenning's  Case,  10  Rep.  43.     But  since  the  14  Eliz.,  and  indeed, 
since  the  32  H.  8  c.  31,  which  the  14  Eliz.  has  repealed  and  sup- 
plied a  recovery  by  covin  is  altogether  void  against  him  in  remain- 
der ;  but  as  it  is  a  common  assurance,  it  was  held  in  Pel/iam's  Case, 
1  Rep.  15,  to  be  a  breach  of  allegiance  which  the  tenant  owed  to 
his  feodal  superior,  and  therefore,  a  forfeiture  of  his  estate.     This 
notion  of  forfeiture  enables  the  courts  to  elude  one  half  of  the  in- 
tention   of  the   legislature,  which   was  to  protect  all  remainders 
whether  contingent  or  vested  ;  and  to  perpetuate  in  a  different  form, 
a  part  of  the  very  mischief  intended  to  be  remedied.     By  the  way, 
it  is  remarkable  how  often  the  narrow  views  of  the  courts  have  de- 
feated very  beneficial  acts  of  the  legislature.      Of  this  the  statute  of 
uses,  the  statutes  of  limitations,  and  the  statute  of  frauds,  the  first 
of  which  was  substantially  repealed  by  the  common  law  courts,  and 
very  important  parts  of  the  last,  nearly  so  by  the  Court  of  Chancery, 
furnish  striking  instances.     So  it  happened  in  some  measure  with 
this  statute  of  14  Eliz.     Now  this  principle  of  forfeiture  as  affecting 
other  interests  than  those  of  the  party,  is  adverse  to  the  habits  and 
feelings  of  our  country,  and  irreconcileable  to  the  spirit  and  prin- 
ciples of   our  civil   institutions.     The    constitution    of  the   United 
States  declares  that  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted; 
and  the  constitution  of  Pennsylvnaia,  besides  containing  the  same 
provision,  declares  that  the  estates  of  those  persons  who  shall  de- 
stroy their  own  lives  shall  descend,  or  vest  as  in  case  of  natural 
death,  and  that  there  shall  be  no  forfeiture  by  reason  of  any  killing 
by  casualty.    These  two  provisions,  peculiar  to  our  state  constitution, 
are  by  no  means  modern,  but  were  taken  from  the  charter  of  privi- 
leges, granted  in  1701  by  William  Penn.     I  certainly  do  not  pretend 
that  the  present  is  a  question  of  political  law,  depending  on  any  pro- 
vision  of  the  constitution ;  but  I  cite  these  passages  to  show  what 
has  all  along  been  the  tone  of  our  most  eminent  jurists,  with  respect 
to  forfeiture  :  which  in  a  doubtful  case,  ought  to  have  weight.     The 
sentiments  of  Mr.  Penn,  the  founder,  and  in  some  respects  the  law 
giver,  of  the  province,  have  a  direct  and  legitimate  operation  on  the 
question  before  us.     The   only  exception  is  to  be  found  in  Evans's 
Lessee  v.  Davis,  1  Yeates,  332,  where,  although  the  point  was  not 
directly  decided,  it  seems  to  have  been  supposed  both  by  the  counsel 


344  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

and  the  court,  that  forfeiture  of  the  particular  estate  by  treason, 
would  bar  a  contingent  remainder.  As  I  am  perfectly  sure  that  no 
opinion  of  mine  can  shake  the  authority  of  an  opinion  of  the  very 
able  judge  who  presided,  and  those  who  were  associated  with  him, 
I  may  without  fear,  that  a  doubt  expressed  by  me  will,  a  second 
time,  give  rise  to  a  law  suit,  take  leave  to  say,  that  if  the  point  were 
now  before  this  court,  I  should  even  on  common  law  principles,  come 
to  a  different  conclusion.  By  the  attainder,  the  particular  estate  was 
neither  extinguished,  nor  altered  in  quantity,  but  existed,  after  it  was 
vested  in  the  commonwealth,  exactly  in  the  plight  in  which  it  was 
held  by  the  tenant ;  and  this  was  admitted  on  all  hands  :  for  the  com- 
monwealth could  not  have  pretended  that  she  held  any  other  interest 
than  the  old  estate,  or  by  any  other  title  than  that  of  the  tenant,  or 
that  the  particular  estate  was  determined  by  escheat.  The  doctrine 
of  forfeiture  for  crimes,  is  not  of  foedal  origin,  but  existed  before 
the  conquest,  as  part  of  the  Saxon  law,  although  the  escheat  was 
afterwards  added  to  it,  so  as  to  operate  in  attainders  of  felony,  not 
of  treason,  after  the  forfeiture  to  the  crown  for  a  year  and  a  day  had 
been  satisfied ;  and  then  the  land  fell  to  the  immediate  lord  of  the 
fee  for  want  of  inheritable  blood,  2  Com.  215.  Now  the  attainder 
in  Evans's  Lessee  v.  Davis,  operated  only  on  the  individual  interest 
of  the  person  attainted  :  and  if  his  estate  had  been  annihilated,  there 
would  have  been  nothing  in  the  commonwealth  to  prevent  the  per- 
son having  the  next  vested  remainder,  from  immediately  entering. 
But  there  is  a  manifest  difference  between  a  forfeiture  which  ope- 
rates as  an  assignment  of  the  parties  interested  to  a  third  person,  and 
a  forfeiture  to  the  remainderman  for  an  act  done  in  disaffirmance  of 
his  estate,  which  operates  by  way  of  extinguishment  of  the  parti- 
cular estate,  and  enables  the  remainderman  to  enter  into  the  im- 
mediate enjoyment  of  his  estate.  The  law  is  clear,  that  wherever 
the  particular  estate  remains  in  specie,  and  unaltered  in  quantity, 
let  it  be  in  the  hands  of  whom  it  may,  it  will  support  a  contingent 
remainder.  Fearne,  1  Jim.  Ed.  338.  And  therefore  a  conveyance 
of  tenant  for  life  by  bargain  and  sale,  or  by  lease  and  release,  de- 
stroys no  contingent  remainder  ;  for  it  passes  only  what  he  may  law- 
fully grant,  ib.  321-2.  Now,  the  act  of  attainder  in  Evans's  Lessee 
v.  Davis,  did  no  more  ;  and  unless  there  be  magic  in  the  word  forfei- 
ture, it  is  difficult  to  see  a  difference  between  a  direct  grant  to  the 
commonwealth,  and  the  doing  of  an  act  which  transfers  exactly  the 
same  estate  to  her  by  operation  of  law.  So  a  severance  between 
joint  tenants,  or  a  release  by  the  one  to  the  other,  is  not  such  an 
alteration  of  the  particular  estate  as  will  bar  a  contingent  remainder, 
because  it  is  an  alteration  in  quality,  and  not  in  quantity :  the  inte- 
rest in  that  respect  remaining  unchanged,  ib.  338 — 9.  But  a  feoff- 
ment in  fee,  or  the  suffering  of  a  recovery,  creates  a  forfeiture 
which  does  operate  by  wTay  of  extinguishment,  and  gives  the  next 
remainderman  an  immediate  right  to  enter,  on  the  exercise  of  which 


March,  1823.]  OF  PENNSYLVANIA.  345 

(Lyle  and  others  v.  Richards.) 

the  contingent  remainder  is  gone.  The  court  seem  to  have  been  car- 
ried away  by  the  word  forfeiture,  without  considering1  that  it  is  not, 
in  any  case,  the  abstract  effect  of  the  forfeiture,  but  the  actual  entry 
of  the  person  next  in  remainder,  in  consequence  of  it,  which  defeats 
the  contingent  remainder.  Thus  the  acceptance  of  a  fine  come  ceo 
from  a  stranger,  although  a  forfeiture,  will  bar  no  remainder,  if  the 
contingency  happen  before  entry,  ib.  349.  And  if  tenant  for  life 
makes  a  feoffment  on  condition,  which  is  broken,  and  he  enters  on 
the  feoffee  before  the  contingency  happens,  the  contingent  remainder 
will  still  be  supported,  unless  the  person  entitled  to  the  next  vest- 
ed remainder  has  entered  for  the  forfeitures,  ib.  349.  Thus  we 
see  it  is  the  vesting  in  actual  possession  of  an  estate,  which  although 
prior  in  time  as  to  vesting  in  interest,  was  posterior  in  time  as  to  the 
order  of  enjoyment,  and  not  the  forfeiture  per  se,  which  bars  a  con- 
tingent remainder.  This  is,  in  fact,  the  root  of  a  principle  which  ex- 
tends as  well  to  cases  of  merger  as  of  forfeiture ;  for  where  a  re- 
mainder in  fee  or  the  reversion,  is  subjoined  to  the  particular  estate, 
they  form  but  one  estate  ;  and  the  tenant  having  been  in  possession 
of  the  particular  estate,  is  in  possession  of  the  whole,  and  consequent- 
ly, in  possession  of  an  estate  posterior  to  the  contingent  estate  ;  and 
a  possession  already  commenced  cannot  be  displaced  to  make  room 
for  an  estate  which  accrued  subsequently  by  the  happening  of  a  con- 
tingency. So  it  is  with  respect  to  an  entry  for  a  forfeiture.  I  should, 
therefore  conclude,  that  if  the  remainder  in  Evans'  lessee  v.  Davis 
had  been  contingent,  it  would  have  been  preserved,  notwithstanding 
the  forfeiture  of  the  particular  estate.  If  the  point  made  by  the 
counsel,  and  apparently  acquiesced  in  by  the  court,  and  the  counsel 
on  the  other  side,  could  be  sustained,  we  might,  considering  the  fre- 
quency of  forfeitures  in  England,  expect  to  find  some  British  au- 
thority for  it ;  but  there  is  none.  Sir  Thomas  Palmer's  case,  Noy. 
202,  S.  C.  Moore,  815,  pi.  1103,  cited  by  the  counsel  from  13  Vin. 
Forfeiture,  C.  pi.  12,  and  recognised  as  law,  by  Justice  Yeates, 
was  this  :  A.  covenanted  to  stand  seised  to  the  use  of  himself  for  life ; 
remainder  to  B.  for  life  ;  remainder  to  the  first,  second,  and  other 
sons  of  B ;  remainder  to  the  right  heirs  of  A.  A.  is  attainted  of 
treason ;  and  held  that  all  his  sons  born  after  the  attainder  were 
barred,  and  that  the  king  should  have  the  fee  discharged.  There 
is  no  reason  given  for  the  decision ;  and  Mr.  Fearne  remarks,  that 
whatever  effect  the  forfeiture  of  A's.  estate  for  life,  and  remainder 
in  fee,  might  otherwise  be  supposed  to  have,  there  was  a  vested 
freehold  in  B.  capable  of  supporting  the  contingent  remainders 
to  his  so?is;  and  that  it  is  impossible  to  reconcile  the  decision  to 
the  settled  principles  of  the  law,  without'(supposing  an  office,  ante- 
cedent to  the  birth  of  a  son  of  B.  finding  a  fee  in  A. :  in  which  case, 
the  right  of  entry  even  of  B.  would  have  been  gone.  Perhaps  the 
true  reason  is,  it  was  a  Star  Chamber  decision,  between  a  subject 
and  the  royal  treasury.  However,  in  Corbet  y.  Tichborn,  2  Salk, 
vol.  ix.  2  X  • 


340  ouiREME   COURT  {Philadelphia, 

(Lylc  and  others  i>.  Richards.) 

57G,  a  case,  in  all  its  circumstances,  like  Sir  Thomas  Palmer's,  it 
was  held  the  contingent  remainders  were  not  barred  ;  because  of  the 
freehold  estate  in  B.  The  case  is  briefly  and  unsatisfactorily  re- 
ported :  but  we  ought  not  to  be  led  to  a  conclusion,  that  the  forfei- 
ture of  A's.  estatejbr  life  alone,  would  have  defeated  the  remainders, 
if  there  had  not  been  an  estate  for  life  in  B.  on  which  they  might 
depend ;  but  as  there  was  a  forfeiture  both  of  A's.  estate  for  life,  and 
remainder  in  fee,  the  particular  estate  would,  but  for  the  intervening 
of  B's.  estate  for  life,  have  merged  in  the  fee  ;  and  the  remainders 
would  have  been  barred  on  that  ground  :  whereas,  the  intervening 
of  B's.  estate,  kept  the  life  estate  of  it,  and  the  remainder  in  fee 
assunder;  and  the  contingent  remainders  might,  therefore,  safely  de- 
pend on  the  freehold  of  B.  Where,  however,  there  has  been  a  ge- 
neral office  finding  a  fee  in  the  person  attainted,  although  falsely, 
the  crown  acquires  a  fee  which  can  be  avoided  only  by  a  traverse ; 
and  in  the  mean  time,  even  vested  remainders  are  turned  to  a  bare 
right ;  the  office  producing,  in  this  respect,  the  same  consequences 
that  were  produced  by  a  common  recovery,  suffered  by  tenant  for 
life,  before  the  Stat.  14  Eliz.,  and  barring  a  contingent  remainder 
in  the  same  way,  by  enlarging  the  particular  estate  to  a  fee.  But 
where  the  office  is  special,  and  finds  the  facts  truly;  or  where  the  act 
of  attainder  operates  only  on  the  interest  which  the  party  attainted 
had,  the  particular  estate  is  not  enlarged  in  the  possession  of  the 
king ;  and  a  person  entitled  to  a  vested  remainder  may,  therefore,  en- 
ter on  him  at  the  expiration  of  such  particular  estate.  Lay  ton  v. 
Manlove,  Salk.  4G9  :  and  it  is  difficult  to  assign  a  reason  why  a  per- 
son who  is  entitled  to  a  contingent  remainder  which  has  vested  by 
the  happening  of  the  contingency  before  that  time,  may  not  also  enter. 
The  sole  reason  why  a  particular  estate  is  necessary  to  support  a 
contingent  remainder,  is  that  a  freehold  estate  cannot  be  created  to 
commence  in  fittero  ;  and  therefore,  there  must  be  livery  of  seisin  to 
pass  the  remainder  outof  the  grantor  when  the  particular  estate  passes; 
the  seisin  of  the  particular  tenant  enuring  to,  and  becoming  the 
seisin  of,  the  remainder-man.  If  there  has  been  such  livery  and 
seisin  at  the  creation  of  the  particular  estate  it  is  sufficient,  and  no  act 
of  the  particular  tenant,  whether  of  forfeiture  or  conveyance,  vesting 
his  particular  estate  in  the  commonwealth  and  no  more,  can  make 
a  difference  ;  for  if  the  forfeiture  should  produce  a  chasm  between 
the  particular  estate  and  the  remainder,  on  the  notion  that  the  estate 
acquired  by  the  commonwealth,  was  a  distinct  interest,  and  not  a 
continuation  of  the  seisin  and  estate  of  the  particular  tenant,  it 
would  on  feudal  principles,  which  require  that  some  person  should 
always  be  actually  seised  to  render  the  services,  be  a  discontinu- 
ance, and  divest  a  remainder  which  was  before  vested  in  interest: 
which  it  clearly  cannot  do.  Mr.  Fearne  observes,  page  308,  that 
there  are  some  few  instances  of  vested  remainders  taking  effect,  al- 
though the  preceding  estate  be  defeated  ;  but  in  all  those  instances 
the  legal  seisin  of  the  remainder-man  was  protected,  because  the 


March,  1823.]  OF  PENNSYLVANIA.  347 

(Lyle  and  others  ».  Richards.) 

estate  fell  back  to  the  grantor,  who  was  in  actual  possession,  and 
enabled  to  perform  the  feudal  services  :  which  would  not  be  the  case 
if  a  forfeiture  to  the  commonwealth  created  in  her  a  new  and  dis- 
tinct estate.  I  have  dwelt  longer  on  this  case  of  Evans'  lessee  v.  Davis, 
than  its  direct  bearing  on  the  question  before  us,  may  seem  to  re- 
quire ;  but  there  is  something  gained  if  I  can  show  that  the  only  in- 
stance in  Pennsylvania,  in  which  forfeiture  of  the  particular  estate, 
has  been  viewed  with  complacency  as  a  bar  to  contingent  remain- 
der, is  in  that  respect  altogether  irreconcilable  to  the  principles 
even  of  the  common  law.  But  it  is  to  be  observed,  that  the  re- 
mainder was  so  clearly  vested,  that  neither  the  court  nor  the  coun- 
sel seem  to  have  given  this  point  much  attention.  And  what  is  of 
some  consequence,  we  may  also  observe,  in  the  act  of  attainder 
which  gave  rise  to  the  question,  a  remarkable  degree  of  care  in  the 
legislature,  in  restraining  its  operation  exclusively  to  the  particular 
interest  of  the  party  attainted :  which  is  in  accordance  with  the 
spirit  of  all  our  provisions  on  the  subject,  and  furnishes  a  presump- 
tion of  intention,  with  respect  to  other  laws  which  otherwise  might 
by  construction  be  extended  to  affect  the  interest  of  third  persons. 

Then  if  the  doctrine  of  forfeiture  has  not  already  been  riveted 
on  us,  its  palpable  injustice,  should  make  us  struggle  to  cast  it  off. 
In  what  light  it  is  viewed  by  Courts  of  Equity,  we  all  know. 
When  trustees,  to  support  contingent  remainders  join  in  a  common 
recovery,  chancery  punishes  them  ;  and  the  only  reason  why  that 
court  will  not  punish  a  tenant  for  life,  for  his  own  benefit,  is,  that 
there  being  no  trust  in  the  case,  it  has  no  jurisdiction  ;  and  the  act 
for  that  reason  alone,  is  left  to  its  legal  consequences.  It  is,  how- 
ever, remarked  by  Mr.  Butler,  Co.  Lit.  290,  b.  n.  1,  that  titles 
depending  on  such  an  act,  can  never  be  recommended  ;  and  the 
power  of  tenant  for  life  to  destroy  contingent  remainders  being 
strictissimi  juris,  can  never  expect  favour,  or  any  thing  beyond 
mere  support.  And  we  are  told,  that  a  late  learned  Chief  Justice 
of  the  King's  Bench,  Lord  Kenyon,  brought  a  bill  into  parliament 
to  remedy  this  very  grievance.  After  this,  can  we  doubt  that  if 
even  the  English  common  law  courts  were  furnished  with  a  plau- 
sible pretext  for  ridding  themselves  of  the  consequences  of  forfei- 
ture without  disturbing  titles,  they  would  not  gladly  lay  hold 
of  it  ? 

To  the  abstract  injustice  of  destroying  these  contingent  interests, 
is  opposed  the  policy  of  unfettering  estates  ;  which  it  is  saidconduces 
to  the  welfare  of  society,  particularly  in  a  republic ;  and  we 
have  heard  much  of  the  bad  tendency  of  perpetuities  in  general,  and 
of  the  aristocratic  notions  of  Mr.  Hamilton,  the  testator,  in  par- 
ticular. In  this,  as  in  every  thing  else,  extremes  are  dangerous. 
There  is  a  wide  difference  between  restraint  on  alienation  for  a  sin- 
gle descent,  and  restraint  till  a  whole  race  shall  become  extinct. 
The  great  objection  to  entails  without  the  means  of  barring  them, 
arises  from  political  consideration ;  the  accumulation  of  property 


348  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

in  a  particular  family  for  ages  having  a  direct  tendency  to  give  a 
preponderance  to  the  aristocracy  of  wealth  and  talents,  which  in  a 
greater  or  less  degree  will  exist  under  every  form  of  government : 
in  this  country,  it  might  in  time  be  dangerous  to  our  civil  institu- 
tions.    No  such  danger  however  can  arise  from  restraint  on  aliena- 
tion for  one  generation  ;  for  the  next  operation  of  the  intestate  acts 
will  break  the  estate  into  fragments,  small  enough  to  allay  all  ap- 
prehensions on  that  score  :  and  as  to  any  impulse  to  exertion  in  the 
acquirement  of  property  by  throwing  off  restraint  in  the  transmis- 
sion of  it ;  or  of  increasing  its  capacity  for  usefulness  by  enabling 
the  possessor  to  make    improvements   without   risk    of  losing  the 
capital   invested  :    that  would    be  more  than  counterbalanced   by 
permitting  every  man  in  possession  of  an  inheritance  to  have  the 
absolute  control  of  the  fee.      I  cannot  discover  the  wisdom  of  that 
policy  which  would  forbid  a  father  from  making  a  prudent  provi- 
sion for  his  extravagant  and  dissolute  son,  without  at  the  same  time 
giving  him  power  to  rob  his  own  unborn  children.     But  the  ques- 
tion is  not  whether  this  may  be  done,  the  law  declares  it  may,  but 
whether  it  shall  be  done  only  by  the  observance  of  this  or  that  ce- 
remony.    There  are  but  too  many  instances  of  improvident  sons  in 
republics  as  well  as  in  monarchies  who  require  provision  for  their 
own  lives,  and  are  at  the  same  time  unfit  to  have  the  absolute  con- 
trol of  their  patrimony.     The  exercise  of  unlimited  controul  over 
their  estates  by  men  just  come  of  age,  has  a  direct  tendency  to 
make  them  spendthrifts  or  something  worse  ;  and  is  certainly  not 
the  best  calculated  to  increase  the  public  stock  of  morality.     With 
respect  to  industry  as  affected  by  this  sort  of  restraint,  there  will  al- 
ways be  a  sufficient  number  of  unfettered  estates  to  invigorate  indi- 
vidual exertion  to  acquire  them  ;  and  as  regards  the  public  interest 
in  the  progress  of  improvement,  there  will  not  be  another  instance 
picked  out  of  ten  thousand,  of  one  of  these  fettered  estates  being 
situated  in  the  edge  of  a  populous  city  :  and  even  in  this  very  in- 
stance, the  experiment  has  terminated  in  disappointment  and  heavy 
losses,    while  the  improvements  are   already  in  a  state  of  delapi- 
dation. 

If  then  such  ought  to  have  been  the  decision  of  this  point,  had  it 
arisen  immediately  after  the  passing  of  the  act  of  1750 ;  are  there 
subsequent  circumstances  which  require  us  to  give  it  a  different 
construction  now  ?  That  it  has  not  been  settled  by  judicial  decision 
is  conceded.  But  it  is  supposed  that  the  report  of  the  judges  of 
this  court  on  the  subject  of  British  statutes  in  force  here,  which  in- 
cludes the  14  Eliz.,  is  an  indirect  recognition  of  the  doctrine  that 
recoveries  are  to  be  considered  as  existing  here  by  the  common  law  : 
because  if  a  recovery  suffered  by  a  tenant  for  life  were  an  absolute 
nullity,  that  statute  would  be  altogether  useless,  I  am  not  going  to 
say  a  word  against  that  report,  or  that  its  accuracy  ought  to  be 
questioned.  On  the  contrary,  it  is  an  able  performance  settling 
many  questions  of  extreme  perplexity,  and  therefore,  as  a  standard, 


March,  1823.]  OF  PENNSYLVANIA.  349 

(Lyle  and  others  v.  Richards.) 

invaluable  in  practice.     As  to  all  matters  which  it  professes  to  de- 
cide, I   think  it  should  be  considered  conclusive,  on  the  ground 
that  it  is  a  report  pursuant  to  a  legislative  reference  of  matters  of 
extreme  doubt,  the  main  object  of  which  was  to  obtain  certainty ; 
and  I  am  content  that  the  statute  of  14  Eliz.  shall  be  considered  as 
in  force  here  :  it  can  do  no  harm.     But  I  cannot  go  to  the  same 
length  in  respect  to  matters  of  mere  inference.     Who  will  say  there 
is  not  a  wide  difference  between  a  report  of  this  kind,  compiled  at 
short  intervals  during  the  recess  of  the  immediate  duties  of  the 
judges,  and  a  solemn  decision  with  the  aid  of  an  elaborate  argument 
by  counsel,  and  the  fruit  of  their  research  ?     Or  who  will  say  that 
the  point  under  consideration  was  in  the  view  of  the  judges  at  all? 
They  knew  that  recoveries  existed  here  in  fact ;  and  it  would  not 
in  like  circumstances,  occur  to  one  man  in  a  thousand  to   inquire 
whether  they  existed  with  all  their  common  law  properties,  or  mo- 
dified by  the  act  of  assembly.     To    suppose   that  such  an  inquiry 
would  present  itself,  is  to  suppose  that  the  law  of  recoveries  with 
its  whole  range  of  consequences  in  all  their  relations,  would  also 
present  itself:  a  thing  not  to  be  credited.     But  on  a  general  view, 
the  statute  might  seem  a  wholesome  provision,  and  therefore  ap- 
plicable to  our  actual  condition ;  but  this  report  is  not  evidence  that 
it  had  been  extended  here  by  actual  practice  in  particular  instances, 
or  that  a  common  recovery  was  ever  suffered  in  Pennsylvania 
with  a  view  to  divest  a  remainder,  or  to  bar  a  contingent  one ;  or 
indeed  for  any  other  purpose  than  to  bar  an  entail.     If  there  was  an 
instance  before  1750,  where  is  the  record  1     If  since,  we  might  ex- 
pect not  only  the  record,  but  some  trace  of  it  in  Mr.  Dallas's  re- 
ports, or  in  the  manuscripts  of  Mr.  Justice  Yeates,  one  of  the 
judges  who  made  the  report,  and  who  is  known  to  have  been  a  dili- 
gent note  taker  and  curious  observer  of  every  thing  rare  and  uncom- 
mon in  the  law.     All  the  research  of  counsel  has  led  to  but  one  in- 
stance where  the  estate  to  be  barred  might  be  mistaken  for  a  con- 
tingent remainder.    In  fixing  on  particular  statutes  supposed  to  be  in 
force  here,  the  judges  could,  in  few  instances,  be  guided  by  a  know- 
ledge of  their  having  actually  been  recognised  in  practice.     As  to 
many  of  them  (and  this  among  the  number)  usage  was  not  to  be  ex- 
pected ;  for  the  simplicity  of  the  manners  and  customs  of  the  colonists 
would  render  it  unnecessary  for  them  to  resort  to  laws  adapted  to  a 
state  of  society  entirely  different,  where  the  artificial  distinctions 
of  rank  had  introduced  more  complex  limitations  of  property,  to 
provide  for  the  younger  branches  of  families  according  to  the  vari- 
ous contingencies  that  might  happen  before  the  estate  should  fall  into 
possession.     The  judges  must,  therefore,  have  frequently  been  go- 
verned by  their  view  of  what  might  be  a  wholesome  application  of 
English  statutes  to  our  actual  condition,  without  having  ascertained, 
with  the  greatest  precision  the  state  of  the   law  in  those  respects 
which  were  supposed  to  render  such  application  necessary.     The 
including  of  the  statute  14  Eliz.  in  the  report,  when  fairly  consi- 


350  SUPREME  COURT  [Philadelphia, 

(Lylc  and  others  v.  Richards.) 

dered,  cannot,  therefore,  go  for  more  than  the  inference  of  an  opi- 
nion of  able  lawyers,  whose  attention  had  not  been  particularly  di- 
rected to  the  point.  Whether  the  question  was  argued  before  the 
late  President  Hamilton  in  Dunwoodie  v.  Reed  and  before  Presi- 
deat  Wilson  in  Ratten  v.  Cornish,  on  the  ground  on  which  it  has 
been  argued  here,  and  what  degree  of  investigation  it  received,  I 
know  not.  At  most  the  decision  in  these  two  cases  can  be  esti- 
mated but  as  the  opinion  of  two  very  respectable  lawyers,  and  as 
such  it  ought  to  go  for  what  it  is  worth  ;  but  these  cases,  and  the  re- 
port of  the  judges,  alone  furnish  any  thing  like  the  expression  of 
judicial  opinion  on  the  subject.  With  respect  to  the  opinion  of  the 
bar  generally,  or  of  those  members  of  it  whose  opinions  are  pecu- 
liarly entitled  to  deference,  it  is  impossible  for  any  one  to  speak 
even  with  a  moderate  degree  of  certainty,  as  the  matter  has  been 
but  very  recently  drawn  into  controversy :  but  I  must  here  take 
occasion  to  assert,  that  from  the  weight  of  the  opinion  of  the  late 
Mr.  Tilghman,  as  collected  from  his  having  advised  the  common 
recovery  in  this  case,  and  with  which  I  was  embarrassed  in  Dun- 
ivoodie  v.  Reed,  the  argument  is  entirely  relieved  ;  for  it  is  alto- 
gether incredible  that  a  gentleman  so  profound  in  every  branch  of 
law,  and  so  peculiarly  au  fait  in  this,  should  have  disowned  the 
very  ground  on  which  we  all  concur  on  holding  the  recovery  to  be 
a  bar  of  the  contingent  remainders.  But  the  abstract  opinion  of 
counsel,  although  doubtless  entitled  to  great  respect,  ought  not  to 
be_considered  decisive,  unless  where  they  have  been  so  far  acted 
upon  as  to  produce  such  a  number  of  titles  depending  on  them  as 
would  render  it  highly  inconvenient  to  depart  from  them;  and  this 
leads  to  an  inquiry  with  which  I  shall  conclude  this  opinion  already 
drawn  to  an  inconvenient  length  ;  how  far  titles  would  be  affected 
by  establishing  the  doctrine  I  advocate. 

I  think  it  may  be  safely  asserted,  that  no  case  can  be  found,  even 
including  the  present,  where  a  common  recovery  was  suffered  with 
a  view  of  barring  a  contingent  remainder  on  the  ground  of  the 
recovery  being  a  forfeiture  of  the  particular  estate.  In  all  the  in- 
stances produced,  except  one,  in  which  the  title  has  been  examined, 
the  interest  intended  to  be  barred,  I  take  it  to  be  conceded,  was  an 
estate  tail.  In  the  case  of  captain  Cooper's  will  the  nature  of  the 
estate  is  doubtful.  In  Dunwoodie  v.  Reed,  it  is  wrell  known  that 
the  recovery  was  suffered  under  a  belief  that  the  tenant  was  seised 
in  tail.  Whence  then  the  danger  to  titles  1  If  there  were  at  an 
early  day,  a  few  cases  of  contingent  remainders  depending  on  an 
estate  for  life,  where  recoveries  were  suffered  on  a  supposition  that 
the  tenants  were  seised  in  tail ;  these  would  be  protected  by  the  sta- 
tute of  limitations  :  and  if  there  should  be  a  few  modern  cases  of  the 
kind,  I  see  no  reason  why  a  principle  on  which  the  parties  did  not 
rely  at  the  time,  should  be  called  up  for  their  protection.  There  may 
in  fact  be  just  as  many  cases  of  the  sort  where  deeds  have  been  ac- 
knowledged pursuant  to  the  act  of  1799,  with  a  view  to  bar  entails, 


March,  1823.]  OF  PENNSYLVANIA.  351 

(Lyle  and  others  v.  Richards.) 

and  where  there  was  no  estate  tail  in  the  case,  but  an  estate  for  life 
with  a  contingent  remainder  depending  on  it;  and  yet  in  Findlay 
v.  Riddle,  that  never  entered  into  the  head  of  the  court  as  a  reason 
why  such  proceeding  should  be  a  bar.  In  the  very  case  before  us, 
nothing  would  be  lost  by  protecting  the  contingent  remainder  if 
the  question  turned  on  this  point,  for  the  Hamilton  family  would 
get  the  property  back  with  the  improvements,  after  having  received 
its  value  thrice  told.  A  court  should  make  large  sacrifices  of  prin- 
ciples to  convenience,  where  a  great  number  of  titles  would  be  un- 
settled by  the  decision  of  a  question  in  a  particular  way ;  but  we 
should  have  a  motley  system  of  patchwork  indeed,  if  the  princi- 
ples of  the  law  were  to  be  wrested  or  bent  to  obviate  every  incon- 
venience that  may  be  felt  in  a  single  case,  or  even  in  a  few  cases. 
Even  courts  of  equity  are  governed  by  general  rules  which  are 
sometimes  inadequate  to  the  doing  of  exact  justice  in  particular 
cases.  There  can  be  no  rule  for  the  application  of  the  argument 
ab  inconvenienti ;  but  every  court  must  in  that  respect  be  governed 
by  a  sound  discretion,  on  a  view  of  the  whole  ground  ;  and  here  I 
discern  no  consequences  from  the  doctrine  I  advocate,  calculated  to 
create  alarm.  I  am  therefore  of  opinion  that  there  are  no  circum- 
stances subsequent  to  the  act  of  1750,  which  require  that  it  should 
now  receive  a  different  construction  from  what  it  ought  originally 
to  have  received. 

Although  this  opinion  may  be  received  as  a  legal  heresy  by  the 
profession,  particularly  in  this  city,  I  do  not  regret  having  express- 
ed it;  and  having  stated  the  reasons  which  forced  my  judgment  to 
adopt  it,  I  leave  it  to  its  fate.  At  the  worst,  however,  it  will  not  I 
hope  be  thought  to  spring  from  sentiments  of  hostility  to  the  Eng- 
lish common  law.  No  freeman  would  hesitate  to  prefer  the  hardy 
features  of  personal  independence  of  this  most  excellent  system  of 
jurisprudence,  notwithstanding  the  subtlety  of  its  forms  and  the  te- 
diousness  of  its  adminstration,  to  the  civil  law,  the  code  of  con- 
tinental Europe,  under  which  justice  may  be  unceremoniously 
snatched  by  the  hand  of  power.  It  is  one  of  the  noblest  proper- 
ties of  this  common  law,  that  instead  of  moulding  the  habits,  the 
manners  and  the  transactions  of  mankind  to  inflexible  rules,  it 
adapts  itself  to  the  business  and  circumstances  of  the  times,  and 
keeps  pace  with  the  improvements  of  the  age.  There  are  un- 
doubtedly principles  of  remote  antiquity  which  are  foundation 
stones,  and  cannot  be  removed  without  destroying  the  beautiful 
and  commodious  modern  edifice  erected  on  them.  But  common 
recoveries  are  not  a  foundation  stone.  They  were  no  part  of  the 
original  plan  ;  but  were  introduced  and  not  very  skilfully  managed 
to  repair  an  injury  from  a  violent  innovation  by  the  legislature.  In 
this  state  they  have  been  successfully  separated  from  the  structure, 
and  might  be  entirely  dispensed  with :  but  as  to  a  certain  extent 
they  undoubtedly  exist,  with  their  rotten  parts  cut  away,  I  am  for 
allowing  them  exactly  the  effect  which  it  seems  to  me  the  legislature 


352  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  ».  Richards.) 

intended  they  should  have,  the  effect  of  barring  estates  tail,  and  no 
further. 

Duncan,  J.  The  case  stated  presented  to  the  view  of  the  court 
one  single,  abstract  proposition  ;  and  that  was,  did  a  common  reco- 
very suffered  after  the  passage  of  the  act  of  1749 — 50,  by  tenant  for 
life,  with  contingent  remainders  in  tail,  destroy  these  remainders  ? 
The  doubt  arose  from  the  division  of  this  court  in  Dunwoodie  v. 
Reed  ;  in  which  I  did  not  sit,  being  of  counsel  in  the  cause.  I 
will  proceed  to  consider  the  case  as  if  it  still  depended  on  that 
proposition  ;  and  then  consider  it  with  relation  to  other  views  which 
have  been  taken  of  the  will  of  the  testator,  the  nature  of  the  estate 
devised,  the  state  of  the  family  when  the  recovery  was  suffered, 
and  the  acts  of  James  and  Andrew  Hamilton  subsequent  to  the 
recovery. — Did  not  the  divided  state  of  the  court  impose  on  me  the 
indispensable  duty,  I  would  have  declined  giving  any  opinion,  be- 
cause of  my  concern,  as  counsel,  in  Dunwoodie  v.  Reed,  and  be- 
cause I  held  the  obligation  of  the  party  against  whose  claim  the 
decision  was,  for  a  fee  depending  on  its  successful  result ;  which 
had  not  been  abandoned,  though  it  had  not  been  renewed  by  suit. 
The  obligation  I  had  cancelled,  to  relieve  my  mind  from  any  sor- 
did consideration ;  and  I  trust  I  have  brought  it  unbiassed  to  the 
decision.  At  least  I  have  honestly  endeavoured  to  extinguish  every 
former  impression ;  and  from  the  result  of  a  very  patient  and  labo- 
rious examination,  my  only  apprehension  is,  that  instead  of  pro- 
ducing a  bias  in  favour  of  a  claim  I  had  much  at  heart,  that  circum- 
stance may  have  produced  a  bearing  against  it :  and  from  the  pecu- 
liarity of  my  situation,  deciding,  as  I  may  say,  alone,  on  property 
of  immense  value  in  the  cause,  but  deciding  likwise  a  principle 
which  involves  a  great  mass  of  property  held  by  others  on  a  similar 
title,  whom  we  understand,  and  whom  we  see,  anxiously  waiting 
the  event  of  the  cause ;  and  setting  a  general  principle  as  to  the 
nature  of  tenures,  affecting  the  whole  landed  interest  of  the  state, 
placed  in  the  conflict  of  opinions,  between  the  Chief  Justice  and 
my  Brother  Gibson,  (whose  opinion  I  unfeignedly  respect,)  and 
where  I  must  differ  from  one  of  them,  in  the  state  of  sole  arbiter, 
I  feel  most  sensibly  the  duty  I  have  to  perform.  But  my  burden 
has  been  greatly  lightened  and  my  task  smoothed,  by  the  very  full 
and  able  discussion  of  the  counsel  on  both  sides  ;  who  have  omitted 
nothing  that  could  shed  light  on  the  question,  and  have  pressed 
every  topic  on  the  attention  of  the  court,  with  a  strength  of  argu- 
ment that  instructed,  and  an  ingenuity  that  charmed  and  elevated. 
They  have  drawn  from  the  darkness,  in  which  it  was  buried,  into 
light,  much  of  the  early  legislative  history  of  Pennsylvania,  on 
the  reception  of  the  common  law,  as  the  basis  of  our  tenures,  and 
much  of  its  judicial  history.  It  would  be  a  work  of  labour  and  of 
difficulty,  for  any  judge  to  state  what  parts  of  the  common  law  the 
colonists  did  bring  with  them.  Some  parts  of  the  common  law  and 
of  the  statutes  of  England  were  never  used  here;  some  of  both 


March,  1823.]  OF  PENNSYLVANIA.  353 

(Lyle  and  others  v.  Richards.) 

laws  were  supplied,  modified,  and  altered  by  legislative  acts;  and 
some  were  rejected  in  use,  as  inconsistent  with  the  policy  of  a 
newly  settled  country.  Those  which  the  silent  legislation  of  the 
people  abrogated  by  desuetude,  as  well  as  those  which  were  altered 
and  repealed  by  the  actual  legislation  of  their  delegates,  have  not 
any  binding  force. 

Our  present,  inquiry  is  more  confined :  Was  the  doctrine  of 
entails,  with  all  its  incidents,  remainders  vested,  contingent,  and 
cross,  with  all  their  appendages,  and  all  the  English  statutes  re- 
gulating executory  devises,  and  shifting  uses,  of  later  origin,  the 
rule  in  Shelly' s  case,  with  all  its  deductions  and  consequences;  the 
rule  that  inheritances  cannot  ascend,  because  like  lead,  must  de- 
scend, because  as  lord  Coke  gravely  observes, — the  father  and 
mother  are  not  of  the  blood  of  their  child,  but  the  uncle  and  aunt 
are, — are  all  those  received,  introduced  and  adopted?  Were  all 
the  grants  of  lands  in  free  and  common  socage,  according  to  the 
common  and  statute  laws  of  England  ?  If  these  things  be  so,  then 
did  our  ancestors  bring  with  them  the  bane,  entail ;  so  little  suited 
to  their  condition,  so  repugnant  to  their  whole  scheme  of  govern- 
ment, and  so  inconsistent  with  the  simplicity  of  their  private  man- 
ners, and  leave  behind  them  the  antidote,  common  recovery. 

Has  perpetuity,  which  in  England  has  been  denounced  as  born 
under  an  unfortunate  planet,  as  too  aristocratic  for  their  monarchy, 
found  a  refuge  in  this  land  of  freedom  ?  It  would  be  strange  if  this 
were  so.  But  it  is  not  so.  In  my  humble  judgment,  entailment 
was  agreeable  to  the  usage  of  Pennsylvania  from  its  first  settle- 
ment. This  is  proven  by  laws,  by  records,  and  by  facts.  The  only 
circumstance  from  which  a  difficulty  could  be  made,  is  an  act  of 
assembly  of  the  11th  March,  1683,  entitled  "  Forms  of  Estates  of 
Inheritance,  or  for  life,  lives,  or  years."  This  act  gives  a  shoi't  and 
simple  form  of  conveyance  for  estates  of  inheritance  to  the  grantee, 
his  heirs  and  assigns ;  and  declares,  that  for  avoiding  long  and  te- 
dious conveyances,  and  the  many  controversies  that  may  arise  about 
variety  of  estates,  all  grants  of  estates  shall  be  either  of  inheritance, 
or  for  life  or  lives,  or  for  years,  not  exceeding  fifty.  1  Dall.  St.  L. 
Appendix,  27.  This  appears  like  a  putting  down  of  estates  tail 
by  grants, — but  does  not  touch  devises.  Nor  does  it  appear  how 
long  it  continued  in  force.  It  certainly  was  not  in  force  in  1705  : 
a  very  striking  proof  of  the  opinion  of  the  first  settlers,  how  incon- 
sistent restraints  on  alienation  were^vith  the  policy  of  our  infant 
settlement.  It  would  be  some  time  before  any  thing  could  be  found, 
respecting  estates  tail  in  the  first  generation.  They  would  not  be 
often  questioned,  nor  would  there  be  frequent  occasion  to  use  com- 
mon recoveries, — nor  perhaps  among  the  first  settlers  were  lawyers 
found  competent  to  prepare  the  apparatus  and  machinery  to  conduct 
them.  From  what  we  have  seen  of  the  judicial  proceedings  among 
the  first  settlers,  there  would  not  appear  to  have  been  one  expert  in 
vol.  ix,  2  Y 


354  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

the  law,  nor  would  any  of  that  profession  be  considered  as  a  desira- 
ble acquisition  among  friends,  in  the.  early  days  of  the  settlement  5 
nor  would  he  have  found  the  practice  a  very  profitable  one.  It 
is  remarkable,  that  at  so  early  a  period  we  should  find  legislative 
recognition  of  estates  tail ;  and  that  the  recognition  of  common  re- 
coveries and  of  estates  tail  should  be  coeval.  The  act  of  1705, 
for  better  settling  estates,  (Weiss' 's  Ed.  1st  vol  25,)  only  regu- 
lates the  descent  of  lands  where  the  father  died  seised,  and  might 
dispose  of  them  by  will.  It  left  estates  tail,  and  all  other  cases  of 
descents,  as  they  were  at  the  common  law  ;  and  an  elder  brother 
by  that  act  succeeded  to  the  estate  of  his  younger  brother,  who 
died  intestate  of  full  age,  unmarried,  in  preference  to  other  bro- 
thers and  sisters.  Lessee  of  Sauder  and  others  v.  Mornivgstar,  1 
Yeates,  313. 

The  case  was  one  of  descent  of  entailed  lands,  and  the  court 
observed  that  it  was  now  too  late  to  stir  the  point,  whatever  rea- 
son there  might  be  before  for  a  contrary  rule  in  the  first  instance, 
that  the  invariable  opinion  of  lawyers — since  the  act  of  1705 — had 
been,  that  entailed  lands  descended  according  to  the  course  of  the 
common  law,  that  it  had  been  understood  generally,  that  it  had 
been  so  decided  at  an  early  day,  that  all  the   common  recoveries 
had  been  conformable  to  this  principle;  and  to  unsettle  so  many 
titles  at  that  day  would  be  productive  of  endless  confusion.     This 
was  a  decision  at  nisi  prius  by  Chief  Justice  M'Kean  and  Mr. 
Justice  Yeates,  judges  of  great  experience.     Indeed  Judge  Yeates 
possessed  more  knowledge  of  the  usages  in  the  country,  than  has 
fallen  to  the  lot  of  any  other  man  ;  and  it  is  a  very  notable  coin- 
cidence that  this  act,  which  left  estates  tail  to  descend  secundum 
formam  doni,  was  passed   at  the  very  same  session  that  an  act 
passed  putting  it  in   the  power  of  tenant  in  tail,  by  any  deed,  or 
conveyance  acknowledged  and  recorded  to  dock  and  bar  estates 
tail,  and  enacts,  "  That  such  deeds  and  conveyances  should  be  of 
the  same  force  and  effect  here,  as  fines  and  recoveries  at  common 
law,  or  deeds  of  feoffment,  with  livery  of  seisin,  or  deeds  recorded, 
in  any  of  the  courts  at  Westminster."     1  Dall.  St.  L.  Appendix, 
29.     There  are  three  observations  taken  by  the  editor  from  some 
early  edition  of  the  laws,  subjoined  in  a  note.     1st.  This  act  con- 
tinued in  force  for  eleven  years.     By  the   minutes  of  assembly  of 
2d  of  11th   month,  1710,  it  appears,  it  was  then  repealed,  and  an 
order  made  for  bringing  in  a  new  bill  to  amend  the  former.     2d 
Observation.     Deeds  made  in  pursuance  of  the  act,  whilst  in  force 
are  sufficient  bars  to  estates  tail.     3d  Observation.     On  the  20th  of 
12th  month,  1710,  a  new  act  was  passed,  in  which  there  is  a  clause 
of  the  same  import  with  this  act,  which  act  continued  in  force  until 
the  20th  of  12th  month,  1713;   when  it  was  repealed  by  order  of 
the  Queen  in  council.     It  would  be  unaccountable,  when  we  find 
the  provincial  legislature  so  anxious  to  avoid  perpetual  entails,  and 


March,  1823.J  OF  PENNSYLVANIA.  355 

(Lyle  and  others  v.  Richards.) 

loosen  restraints  on  alienation,  that  they  should  leave  the  owner 
without  any  mode  to  accomplish  an  end  so  much  desired,  from  1713 
to  1750,-37  years. 

This  anxious  legislature  is  far  from  discovering  a  design  to  abro- 
gate the  common  law  recovery.  It  confirms  its  existence  and  use, 
it  provides  a  more  expeditious  and  less  expensive  instrument;  and 
instead  of  the  cumbrous  and  complex  machine  then  in  use,  com- 
mon recovery,  gives  to  the  people  an  opportunity  of  using  a  com- 
mon household  implement,  which  the  meanest  capacity  could  com- 
prehend, and  the  most  common  scrivener  prepare,  leaving  to  such 
as  chose  it,  the  common  recovery  as  it  stood,  which  many  now  use 
instead  of  the  conveyance  of  the  act  of  1799;  considering  that  in 
some  cases  it  might  accomplish  something  unattainable  by  that 
mode.  Of  the  effect  of  the  conveyance  under  the  act  of  1799,  in 
not  creating  a  forfeiture  of  a  life  estate,  and  destroying  contingent 
remainders,  I  give  no  opinions  at  present.  I  neither  assent  to,  nor 
dissent  from  the  dictum  of  the  Chief  Justice  in  Dunwoodie  v.  Reed. 
That  the  affirmative  act  of  1705  implied  a  negative  of  the  common 
law,  or  that  the  act  of  1749 — 50  impaired  its  effect  in  any  respect, 
I  am  far  from  granting.  As  well  might  it  be  contended,  that  the 
act  of  1799,  giving  a  new  remedy  to  tenants  in  tail,  took  away  the 
common  law  recovery,  and  its  recognition  in  the  act  of  1749 — 50. 
This  is  not  only  contrary  to  the  general  understanding,  but  is  di- 
rectly in  the  teeth  of  the  report  of  the  judges  of  this  court,  on  the 
British  statutes  to  be  incorporated  into  our  laws.  The  act  of  1705, 
and  1799,  give  different  remedies :  the  act  of  1749  gave  the  same 
remedy.  But  if  it  were  even  a  different  one,  still  the  common  law 
recovery  would  be  in  full  force,  and  a  party  would  be  at  liberty  to 
use  one  or  the  other  as  pleased  himself.  It  requires  negative  words 
to  take  away  a  common  law  remedy,  or  a  common  law  right;  or 
provisions  so  inconsistent  with  the  previous  law,  as  to  manifest  the 
clear  intention  of  the  legislature.  Let  us  illustrate  this  by  one  or 
two  examples :  The  compulsory  arbitration  act  gives  a  new  form  of 
writ,  on  contracts  verbal  or  written :  it  gives  a  form  of  statement, 
as  a  substitute  for  the  common  law  declaration.  But  this  provision 
does  not  take  away  the  common  law  writ,  and  the  common  law  de- 
claration. The  same  act,  whose  object  was,  as  the  title  shows,  "  to 
regulate  proceedings  in  courts  of  justice,"  gives  a  new  form  of  writ 
in  ejectment,  but  it  provides  that  all  writs  of  ejectment  shall  he 
in  the  form  following  and  not  otherwise.  In  the  first  case,  it 
has  been  decided,  that  notwithstanding  this  provision,  the  defend- 
ant may  pursue  the  old  form  of  action  if  he  thinks  proper,  and  is 
not  debarred  of  the  action  of  debt.  Miles  v.  O'Hara,  1  Serg.  <Sr  Rawle, 
32.  Yet  in  ejectments  the  new-prescribed  form  must  be  pursued. 
Mr.  Wharton  in  his  very  valuable  work,  has  arranged  this  case 
very  properly  under  the  head  of  Actions.  Tit.  Election  of  Actions, 
Whart.  Dig.  3.  But  this  is  no  new  doctrine.  It  is  an  obvious 
principle  in  the  construction  of  statutes,  that  they  are  never  pre- 


356  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

sumed  to  make  an  alteration  in  the  common  law,  further  than  as 
the  statute  declares ;  and  where  there  is  a  right  at  common  law  and 
the  statute  takes  away  that  right,  it  is  to  be  construed  strictly,  and 
is  not  to  go  beyond  its  very  words.  1  Ball.  66.  11  Mod.  149.  10 
Johns.  579.  For  in  all  general  matters,  the  law  does  not  presume 
any  alteration  intended  by  the  act  further  than  is  expressed.  Hence 
it  is,  that  the  intestate  acts,  though  in  their  provisions  very  general, 
do  not  comprehend  estates  tail.  In  one  of  the  first  editions  of  the 
acts  of  assembly,  there  is  a  note  to  the  charter  to  William  Penn, 
observing,  that  although  it  should  be  made  a  question  whether  the 
statute  laws  of  England  did  not  extend  to  this  province  by  the 
charter,  yet  as  the  common  law  is  generally  allowed  to  be  in  force 
in  such  cases,  where  no  alterations  have  been  made  by  act  of  as- 
sembly, and  it  appears  to  have  been  resolved  in  the  Earl  of  Derby's 
case,  4  Inst.  284,  that  lands  granted  by  letters  patent  from  the 
Crown,  though  out  of  the  realm  of  England,  should  descend  ac- 
cording to  the  course  of  the  common  law,  (1  Dull.  St.  L.  Appen- 
dix, 261,)  so  lands  in  Pennsylvania  descend  according  to  the  same 
course.  Even  in  penal  statutes  this  construction  obtains ;  for,  where 
a  statute  creates  a  new  offence,  and  points  out  a  particular  punish- 
ment, and  a  specific  mode  of  recovering  the  penalty  which  it  inflicts, 
that  particular  method  must  be  pursued :  but  where  the  act  was  an- 
tecedently punishable  by  a  common  law  proceeding,  and  he  statute 
prescribes  a  particular  remedy  by  a  summary  proceeding-,  there 
either  method  may  be  pursued  ;  and  the  prosecutor  is  at  liberty 
either  to  proceed  at  the  common  law,  or  in  the  method  prescribed 
by  the  statute  ;  because  there  the  action  is  cumulative,  and  does  not 
preclude  the  common  law.  The  king  v.  Robinson,  2  Burr.  799. 
In  the  act  for  "  regulating  proceedings  in  courts  of  justice,"  before 
referred  to,  the  legislature  provided,  "  that  in  all  cases  where  a 
remedy  is  provided,  or  duty  enjoined,  or  any  thing  directed  to  be 
done  by  any  act  of  assembly,  the  directions  of  the  acts  shall  be 
strictly  pursued,  and  no  penalty  shall  be  inflicted,  or  any  thing  done 
agreeably  to  the  provisions  of  the  common  law,  in  such  cases,  fur- 
ther than  is  necessary  to  carry  the  act  into  effect."  Here  is  a  re- 
cognition of  cumulative,  statutory,  and  common  law  remedies. 
This  act  has  been  considered  not  to  touch  civil  actions,  or  remedies 
for  civil  rights,  and  is  confined  to  penal  inflictions  merely.  In 
American  legislation,  when  a  term  of  the  common  law  is  adopted, 
the  common  law  meaning  is  adopted  with  it.  To  know  what  the 
common  law  was  before  the  making  of  such  statute,  is  the  very 
lock  and  key  to  open  its  windows,  and  it  is  always  considered  the 
best  interpretation  of  statutes,  to  construe  them  as  near  the  reason 
and  rule  of  the  common  law  as  may  be.  Common  recovery  is  above 
all  others  a  term  of  art,  has  a  technical  signification ;  and  even  in 
the  construction  of  the  constitution  of  the  United  States,  this  rule 
prevails  with  relation  to  terms  of  art,  and  that  even  in  the  highest 
offence, — treason.     The  question  on  the  trial  of  Colonel  Burr,  4 


March,  1823.]  OF  PENNSYLVANIA.  -    357 

(Lyle  and  others  v.  Richards.) 

Cranch,  Appendix,  was  on  the  meaning  of  the  term,  levying  war. 
Chief  Justice  Marshall  observed,  "  It  is  not  for  the  first  time 
applied  to  treason  by  the  constitution  of  the  United  States.  It  is 
a  technical  term :  it  is  used  in  a  very  old  statute  in  that  country, 
whose  language  is  our  language,  and  whose  laws  form  the  substra- 
tum of  our  laws.  It  is  scarcely  conceivable,  that  the  term  was  not 
employed  by  the  framers  of  our  constitution,  in  the  sense  which 
had  been  affixed  to  it  by  those  from  whom  we  borrowed  it.  So 
far  as  the  meaning  of  any  terms,  particularly  terms  of  art,  is  com- 
pletely ascertained,  those  by  whom  they  are  employed  must  be 
considered  as  employing  them  in  that  ascertained  meaning,  unless 
the  contrary  be  proved  by  the  context."  The  act  of  1749  gives  to 
common  recoveries  not  only  their  common  law  effect,sbut  all  their 
effect  under  the  statute  law  ;  that  is,  the  statute  of  Elizabeth  and 
other  statutes  declaring  covenous  recoveries  by  tenants  for  life 
void.  That  act  likewise  makes  them  void.  There  was  the  same 
law  of  entailment,  the  statute  de  donis  in  full  force  here,  the  same 
mode  of  destruction,  by  an  instrument  of  the  same  name,  with  a 
declaration  that  whatever  effect  it  should  have  in  the  mother  coun- 
try it  should  have  here,  whose  common  law  was  our  common  law, 
guaranteed  to  William  Penn,  and  his  followers,  by  the  charter,  in- 
sisted upon  by  the  representatives  of  the  people  as  their  birthright ; 
not  considered  a  badge  of  slavery  or  a  yoke  of  oppression,  but  the 
palladium  of  their  privileges  and  charter  of  their  rights.  And 
this  position  judges  must  treasure  up  in  their  minds;  because  when 
called  upon  to  decide  questions  of  meum  and  tuum,  it  is  their  only 
sure  guide.  All  lands  in  Pennsylvania  are  held  in  free  and  com- 
mon socage,  and  thus  socage  tenure  is  still  resorted  to  in  the  nomi- 
nation of  guardians.  The  Orphans'  Court  in  their  appointments 
are  confined  to  guardians  in  socage,  or  by  nurture.  Graham's 
Appeal,  1  Ball.  136. 

The  soil  was  granted  to  William  Penn  in  free  and  common 
socage.  It  was  so  held  by  him,  so  parcelled  out  to  his  followers, 
and  so  granted  by  him  and  his  successors,  as  will  appear  by  every 
patent  issued  anterior  to  the  revolution..  It  was  an  inherent  prin- 
ciple in  all  new  settlements,  that  the  laws  of  the  mother  country, 
not  inconsistent  with  the  circumstances  and  situation  of  the  infant 
colony,  should  have  a  binding  force  until  altered  by  the  new  go- 
vernment; and  that  binding  force  arises  from  a  necessity,  which 
supposes  that  they  received  the  laws  under  which  they  Hived, 
before  their  settlement  in  the  new  plantations,  and  agreed  to  be  go- 
verned by  them,  for  want  of  another  law.  See  2  Smith's  Lairs, 
106,  in  his  very  interesting  article  on  the  land  laws  of  Pennsylva- 
nia. Now  no  one  will  pretend,  that  a  law  avoiding  restraints  on 
alienation  of  lands  was  inconsistent  with  their  state  ;  though  all 
will  agree,  that  the  restraint  itself  was  inconsistent.  But  this  did 
not  rest  on  the  compact  between  the  founder  and  his  followers :  it 
was  incorporated  in  the  royal  charter.     "  The  laws  for  regulating 


358  SUPREME  COURT  [Philadelphia, 

(Ly'e  and  others  v.  Richards.) 

and  governing  property,  as  well  for  the  descent  and  enjoyment  of 
lands,  as  the  succession  and  enjoyment  of  goods,  &c.  shall  be  and 
continue  the  same  as  they  shall  be  for  the  time  being,  by  the  gene- 
ral course  of  the  laws  of  England,  until  the  said  laws  shall  be  al- 
tered by  the  said  William  Penn,  his  heirs  or  assigns  ;  and  by  the 
freemen  of  the  said  province,  their  delegates  or  deputies,  or  the 
greater  part  of  them." — It  is  plain,  that  from  the  date  of  the  charter 
until  laws  were  made  to  alter  the  succession,  lands  descended  ac- 
cording to  the  courts  of  the  common  law ;  and  not  only  descent, 
but  enjoyment  and  purchase,  including  every  other  mode  of  acqui- 
sition, were  governed  by  that  law, — acquired  and  lost  by  the  course 
of  the  same  common  law.  In  one  word,  in  general,  the  common 
law  has  been  in  force  in  Pennsylvania,  (1  Dall.  67;)  and  common 
recoveries  as  a  part  of  that  common  law.  There  was  a  day  in 
this  state,  when  this  would  not  have  been  a  popular  doctrine  with 
many.  For  some  men,  with  very  honest  views,  under  the  name 
of  improvements  were  prepared  for  dilapidation :  but  the  people, 
with  the  voice  of  the  barons  of  old,  exclaimed  nolumus  communem 
legem  mutare.  The  provisions  and  institutions  of  the  common  law 
are  more  entitled  to  respect  and  veneration  from  their  age  and 
utility,  better  calculated  to  increase  the  happiness  of  individuals,  se- 
cure their  liberty  and  property,  and  promote  the  general  welfare,  the 
legitimate  ends  of  all  governments,  than  the  institutions  of  any  other 
country,  with  all  their  boasted  codes  and  codifications,  so  much  ap- 
plauded by  some  for  their  terseness  and  brevity.  The  true  proposi- 
tion is,  that  the  common  law  is  general  and  fundamental ;  and,  unless 
where  the  common  usage  of  the  country  has  changed  it,  or  it  has 
been  altered  by  acts  of  assembly,  it  is  the  inexhaustible  fountain  of 
justice  from  which  we  draw  our  law.  It  is  sometimes  asked  with  a 
sneer,  What  is  the  common  law  of  Pennsylvania  ?  I  answer  unhe- 
sitatingly, So  much  of  the  common  law  of  England,  and  their  civil 
institutions,  as  our  ancestors  brought  with  them,  and  of  the  statutes 
then  in  force  altering  or  amending  it ;  such  of  the  more  recent  sta- 
tutes as  have  been  since  adopted  in  practice,  and  the  ancient  usages, 
may  be  considered  as  forming  the  body  of  the  common  law  of  Penn- 
sylvania ;  which  has  submitted  to  some  alterations  by  non-usage, 
by  acts  of  the  provincial  and  state  legislatures,  and  by  provisions 
of  the  constitution  of  the  state  and  of  the  United  States.  This  de- 
finition has  no  claim  to  originality :  it  is  collected  from  the  judicial 
opinions  of  the  courts  throughout  the  union,  and  the  express  enact- 
ments of  our  own  legislature,  I  mean  the  act  of  1777,  (one  of  the 
first  acts  of  legislation  of  the  state  government,  which  declares, 
"  the  common  law,  and  such  parts  of  the  statute  laws  of  England 
as  have  been  theretofore  in  force,  to  be  in  as  full  force,  as  if  they 
had  then  been  enacted  ;"  the  act  requiring  the  judges  to  report  what 
British  statutes  are  in  force,  and  the  act  of  March,  1810,  prohibit- 
ing in  courts  of  justice  the  reading  or  quoting  of  British  precedents 
or  adjudications,  subsequent  to   the   4th  July,    1776,   than  which 


March,  1823.]  OF  PENNSYLVANIA.  359 

(Lyle  and  others  v.  Richards.) 

nothing  can  be  a  stronger  recognition  of  the  general  authority  of 
the  common  law. 

Our  ancestors  emigrated  with  sentiments  hostile  to  restrictions 
on  the  transfers  of  land,  and  impressed  with  the  mischiefs  of  entail. 
They  struggled  hard  to  set  them  altogether  free,  and  passed  act 
after  act,  putting  it  in  the  power  of  tenant  in  tail  to  aliene  as  tenant 
in  fee  by  a  prescribed  form  of  conveyance.     We  cannot  suppose, 
that  they  peevishly  or  wantonly  renounced  the  power  of  unbinding 
them  altogether,  because  they  would  not  be  suffered  to  untie  them, 
in  their  own  way :  which  was  not  finally  accomplished,  until  the  act 
of  1799.     So  much  had  the  people  set  their  hearts  on  this,  that  the 
convention  who  framed  the  constitution  of  1776,  enjoined  it  on 
future  legislatives  "  to  regulate  entails  in  such  manner,  as  to  pre- 
vent perpetuities."     The  best  account  of  the  mischief  of  estates 
tail,  and  of  the   remedy  of  common  recovery,  is  in  the  opinion  of 
Baron   Manwood,  in   Sir    William   Pelham's    Case,   2   Leon.   66. 
"  Tenant  in  tail,"    he   observed,  "  might,  by  the   common  law, 
aliene  his  lands  post  prolem  suscitatam,  and  now  he  hath  an  inhe- 
ritance, and  may  do  waste,  but  he  was  so  restrained  by  the  stat. 
of  Westminster  2d,  that  all   the  realm  and  all  the  subjects  in  it, 
were  inveigled    thereby.     Jointures  of  wives,  leases,  mortgages, 
and  other  securities,  were  defeated,  by  the  death  of  tenant  in  tail, 
which  was  both  against  the  common  law,  and  against  all  con- 
science.    These  matters  coming  to  the  knowledge  of  the  justices, 
and  the  mischiefs  thereupon  following  being  very  frequent,  and  it 
appearing  that  tenant  in  tail  was  a  dangerous  fellow,  and  that  there 
was  no  safe  dealing  with  him,  they  considered  with  themselves,  that 
lineal  warranty  and  assets,  and  collateral  warranty  without  assets, 
did  bar  the  entail.     Upon  this   consideration,  they  grounded  the 
practices  and  usages  of  common  recoveries,  so  as  by  that  means, 
tenant  in  tail  hath  potestas  alienandi."     Not  again  to  turn  to  this 
case,  the  subject,  of  forfeitui'e  by  tenant  for  life,  suffering  a  com- 
mon recovery,  is  fully  treated,  and  the  Baron  gives  many  instances 
where  such  forfeiture  arises.     Tenant  for  life  joins  the  mise  upon 
the  mere  right :  lessee  for  years  being  ousted,  brings  an  assize 
and  recovers,  accepting  a  fine  of  a  stranger  comme  ceo,  &c.  all 
these  are  forfeitures.    He  answered  the  objection,  that  the  recovery 
being  void  by  statute  could  not  affect  the  tenant  in  tail  thus.     As 
to  what  hath  been  said  of  the   forfeiture,  and   that   the  recovery 
should  stand  in  force,  until  the  death  of  the  tenant  for  life,  and  in 
our  case  the  tenant  is  alive,  truly,  if  the  law  should  be  such,  great 
mischief  would  follow.     For  jointresses  having  assurances  to  them, 
of  great  stately  houses,  and  of  lands  furnished  with  timber,  and 
of  great  and  yearly  value,  might  suffer  such  recoveries,  and  having 
plucked  the  fee  out  of  the  heirs,  might  commit  waste,  and  should 
be  dispunishable,  which  would  be  intolerable  mischief,  and  so  con- 
cluded that  a  recovery  by  tenant  for  life  was  a  forfeiture.     But  it  is 
said,  there  lias  been  no  usage  of  recovery  at  common  law.  The  very 


360  SUPREME   COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

act  of  1749  proves  the  usage  of  this  common  law  right  and  privi- 
lege proprio  vigore  and  without  the   aid  of  any  act  of  assembly, 
from  1713  to  1749.     It  declares  prior  common  recoveries  to  be  va- 
lid :  but  this  was  no  acknowledgment  that  they  required  such  aid. 
Provisions  of  this  kind  are  frequently  used.     They  are  introduced, 
ex  majori  cautela,  and  prove  nothing  here.     Fines,  though  seldom 
if  ever  used,  are  still  recognised.     The  judges  in  their  report,  in- 
troduced several  British  statutes,  regulating  fines,  as  obtaining  in 
Pennsylvania ;  particularly,  the  statute  de  modo  levandi  fines.     In 
conveyances,  usage  introduced  a  mere  acknowledgment  of  a  feme 
covert,  and  when  this  was  questioned  in  courts  of  justice,  it  was 
confirmed  on  the  principle  of  communis  error  facit  jus.     From 
1744  to  the  passing  of  that  act,  there  are  found  three  common  re- 
coveries suffered  in  the  city  and  county  of  Philadelphia.     In  the 
other  counties  there  has  been  no  search.     Whether  there  was,  at 
that  early  day,  in  Chester,  Bucks,  or  Lancaster  counties,  any  law- 
yer sufficiently  skilled  to   conduct  them,  I  know  not :   but  in  the 
city  and  county  we  find  the  only  distinguished  members  of  the 
bar,  the  attorney  general  Mr.  Francis,  Messrs.  John  Ross,  and 
Moland  passing  them.     When  we  find  such  proceedings  carried 
on  by  such  men,  and  admitted  of  record,  as  judicial  acts,  by  a 
court  having  jurisdiction  in  all  actions,  real,  personal  and  mixed, 
it  forms  the  only  conclusive  evidence  such  fact  is  capable  of,  irre- 
fragable evidence,  whose  verity  cannot  be  questioned.     For  no  man 
can  deny,  that  defacto,  these  recoveries  were  suffered.     How  weak 
was  the  evidence  of  the  use  of  trial  per  medietatem  lingua  proved 
by  one  witness  to  have  been  used  in  one  instance,  compared  with 
the  undeniable  evidence  by  record  1    and  if  the  validity  of  any 
one  of  these  three  recoveries,  at  the  end  of  nearly  eighty  years, 
without  the  benefit  of  the  protecting  clause  in  the  act  of  1749,  was 
now  called  in  question,  I  would  not  be  the  judge  to  pronounce 
them  all  nullities,  and  that  all  these  solemn  acts,  advised,  con- 
ducted, and  guided  by  all  the  respectable   men  of  the  profession, 
recorded  and  acted  upon  in  courts  of  justice,  the  property  trans- 
ferred again  and  again,  improved  and  built  upon,  and  now  of  a  hun- 
dred fold  more  value,  were  nothing  but  assumptions  of  power,  co- 
ram non  judice,  and  no  title  acquired  under  them.     Higher  and 
better  evidence  could  not  exist.  But  in  addition  to  all  this,  we  have 
the  declarations  of  Chief  Justice  M'Kean,  and  Judge  Yeates,  in 
Sauder's  Lessee  v.  Morningstar,  before  referred  to,  that  to  unset- 
tle so  many  titles   held  by  them,  would  be  productive  of  endless 
confusion.     This  was  never  called  in  question,  until  the  decision 
in  Dunwoodie  v.  Reed,  unless  in  the  statement  of  Chief  Justice 
Shippeiv,  and  certainly  every  thing  that  fell  from  that  venerated 
man,  is  entitled  to  great  respect,  and  it  is  not  to  be  wondered  at, 
that  confiding  in  this  statement,  as  all  would  do,  it  would  produce 
erroneous  opinions.     But  the  Chief  Justice  there  showed,  that  either 
there  was  mistake  in  the  statement,  or  misconception  in  the  repor- 


March,  1823.]  OF  PENNSYLVANIA.  361 

(Ljlc  and  othurs  v.  Richard?.) 

ter,  and  this  has  been  more  abundantly  proved  on  this  argument. 
The  usage  in  the  courts  of  confessing  a  judgment  against  the  testa- 
tor, and  selling  his  land  to  dock  the  entail,  was  an  expedient  re- 
sorted to,  perhaps,  by  country  practitioners  from  ignorance  of  the 
mode  of  cutting  the  Gordian  knot  by  common  recovery,  and 
therefore  cutting  it  by  a  sheriff's  sale.  This  silence  on  the  exer- 
cise of  so  great  an  authority,  in  the  use  of  a  common  law  remedy, 
the  only  one  which  existed  to  cure  the  crying  mischiefs  of  estates 
tail,  is  of  itself  powerful  evidence  of  its  legal  foundation,  though 
nothing  can  be  found  in  any  book  respecting  it;  just  as  the  total 
disuse  of  any  institution  for  ages  past,  would  afford  just  and  reasona- 
ble objections  against  the  enforcing  superannuated  ordinances.  1 
Woodson,  63.  This  usage  does  not  require  the  same  strict  evi- 
dence that  is  required  to  prove  a  particular  custom  in  derogation 
of  the  common  law,  which  is  a  general  custom,  but  it  has  all  the 
ingredients  of  a  particular  custom.  It  is  immemorial,  that  is, 
one  of  the  primitive  usages  of  the  province.  Continued,  peacea- 
ble, reasonable,  certain,  and  consistent,  semper  usitata  and  pro- 
bata. It  is  not  a  sound  position,  that  to  establish  the  reception 
of  any  part  of  the  common  law,  it  must  be  proved  when  and  where 
and  on  what  occasion,  and  by  whom  it  was  adjudged.  If  I  were 
asked,  in  what  cases  it  was  adjudged  that  a  limitation  to  a  man  and 
his  heirs  gave  him  a  fee  simple,  I  should  be  as  unable  to  answer  as 
Lord  Hale  was,  when  the  same  question  was  put  to  him.  Who  be- 
fore the  decision  of  Eshleman  v.  Hoke,  could  point  out  a  case  in 
which  it  had  been  decided,  that  collateral  warranty,  with  sufficient 
real  assets  descending  to  heirs,  will  bar  them  from  recovering  the 
lands  warranted  ?  Yet  this  was  the  opinion  of  the  court,  on  a  spe- 
cial verdict ;  not  a  hasty  decision  at  JYisi  Prius,  but  where  time 
had  been  taken  for  deliberation.  2  Yeates,  504.  4  Dall.  168.  But 
the  proof  of  the  negative  should  be  on  those  who  allege  the  excep- 
tion, and  it  is  susceptible  of  ready  proof.  For  instance  ;  to  prove 
that  in  this  state,  the  wife  will  be  endowed  of  a  trust  estate,  the  hus- 
band entitled  to  be  tenant  by  the  curtesy,  though  no  actual  seisin  of 
the  wife's  lands,  if  they  be  uncultivated  lands.  I  know  not  whether 
it  has  gone  to  a  case  of  actual  adverse  seisin :  the  constructive 
seisin  of  wild  lands,  not  obtaining  where  there  is  an  adverse  posses- 
sion. 8  Johns.  262.  Where  there  is  an  adverse  seisin,  in  Connec- 
ticut it  is  held,  that  the  wife's  right  to  possession  will  entitle  him. 
4  Day,  298.  Nor  has  the  rule,  that  descents  toll  entries,  or  that 
one  cannot  grant  or  devise  lands,  where  the  seisin  is  adverse  sei- 
sin being  necessary  by  the  feudal  law  in  order  to  the  investiture  of 
possession,  being  inconsistent  with  the  state  of  a  new  country,  been 
ever  used  here.      Ownership  gives  the  right  of  alienation. 

The  course  of  the  offices,  and  a  variety  of  precedents  form  strong 
evidence  of  the  law  ;  but  here  are  the  judicial  opinions  of  Chief  Jus- 
tice M'Kean,  Chief  Justice  Shippen,  Justices  Yeates  and  Brad- 
ford.    Chief  Justice    M'Kean,  not   only    in    Sauder's   Lessee   v. 

vol.  ix.  2  Z 


362  SUPREME  COURT  [Philadelphia, 

(Lylc  and  others  v.  Richards.) 

Morningstar,  but  in  J\PKee  v.  Pfoutz,  directly  admits,  that  feudal 
ceremonies  in  relation  to  descents  and  transmissions  of  pro- 
perty, prevailed  here.  He  says  "  the  legislature  has,  at  various 
periods,  and  on  a  variety  of  subjects,  departed  from  fuedal  princi- 
ples and  ceremonies,  in  the  descent  and  transmission  of  real  pro- 
perty ;"  clearly  showing,  that  where  the  legislature  had  not  depart- 
ed from  them  they  continued  the  law  of  real  property :  and  Judge 
Shippen  admitted  the  feudal  principle  of  forfeiture,  by  feoffment 
or  deed  of  record.  The  weight  of  practice,  of  jurisdiction  exer- 
cised, of  the  opinions  of  all  the  sages  of  the  law,  is  not  to  be  com- 
pared to  the  mere  usage  of  conveyancers.  Yet  so  much  respect  is 
paid  to  their  practice,  that  courts  of  justice  will  not  overturn  the 
universal  opinion  and  usage  of  eminent  conveyancers,  though  not 
founded  in  principle,  as  it  might  render  titles  precarious.  Sugden, 
288.  In  Basset  v.  Basset,  3  Atk.  298,  the  chancellor  said,  that 
the  uniform  opinions  and  practice  of  eminent  conveyancers,  has 
always  had  great  regard  paid  to  it,  in  courts  of  justice,  and  the  case 
of  Radnor  V.  Vandebender,  Show.  P.  C.  69,  was  determined  on 
the  point  of  dower,  entirely  from  the  opinion  of  conveyancers  on 
the  deed.  The  common  law  of  common  recoveries  is  the  common 
law  of  Pennsylvania.  Are  contingent  remainders  acknowledged 
by  our  law?  For  if  they  are,  they  must  partake  of  the  destruc- 
tible quality  which  their  very  name  impresses  on  them.  That 
such  things  are,  was  riot  denied  in  Dunwoodie  v.  Reed,  and  if  they 
are,  they  must  require  a  particular  estate  to  support  them.  They 
cannot  live  in  the  air,  or  be  dandled  in  gremio  legis,  until  they 
are  ripe  for  enjoyment.  They  hold  life  by  a  most  attenuated  thread. 
Take  away  this  prop,  and  they  drop  into  the  grave,  or  rather,  their 
potentiality  of  future  existence  is  annihilated.  Present  existence 
they  have  none.  They  never  were  in  rerum  natura ;  and  this  prop 
may  not  only  be  removed  by  the  forfeiture  of  tenant  for  life,  but 
is  subject  to  the  accident  of  the  consolidation  of  the  two  estates,  for 
life  and  in  fee,  by  merger,  which  may  happen  by  act  of  the 
parties,  surrender  by  tenant  for  life  to  him  who  holds  the  ultimate 
fee,  either  by  way  of  remainder  or  reversion,  or  by  act  of  law,  me- 
diate descent.  For  whoever  and  whatever  avoids  the  first  estate  of 
freehold,  avoids  remainders  expectant  on  this  estate,  whether  it  be 
by  act  of  tenant  for  life,  or  act  of  law  altering  the  particular  estate 
in  quantity  of  interest;  for  it  is  not  the  same  estate,  whatever  may 
have  produced  the  alteration.  This  imperfect  and  suspended  state 
is  one  of  the  substantial  differences  between  contingent  and  vested 
remainders,  2  Bl.  173 ;  and  this  contingent  remainder,  with  this  mortal 
infirmity,  was  received  as  the  common  law  of  Pennsylvania,  in 
Evarts  Lessee  v.  Davis,  1  Yeates,  332,  where  the  only  question 
made  was,  whether  the  remainder  to  Abel  James,  was  vested,  or 
contingent ;  for  it  was  admitted  by  the  counsel  for  the  plaintiff,  and  for 
the  defendant,  that  if  the  particular  estate  determined  before  the  con- 
tingency happened,  the  contingent  remainders  were  destroyed.    The 


March,  1823.]  OF  PENNSYLVANIA.  .  363 

(Lyle  and  others  v..  Richards.) 

counsel  for  the  plaintiffs  were  E.  Tilghnan,  Wilcochs  and  Lewis ; 
for  the  defendants,  Sergeant,  LigersoU,  and  Coxe :  of  whom  it  may 
be  said  without  disparagement  to  their  successors  at  the  bar,  that  they 
were  not  excelled  by  them,  in  their  knowledge  of  this  branch  of  the 
law.  Chief  Justice  M'Kean,  Justices  Shippen,  Yeates,  and  Brae- 
ford,  were  all  of  this  opinion.  This  case  establishes  incontestably 
at  least  two  points.  One,  that  such  things  as  contingent  remainders 
are  common  to  our  laws' ;  and  another,  that  they  are  determined  by 
the  destruction  of  particular  estates.  It  goes  far  to  establish  a 
third  point,  that  common  recoveries  will  produce  this  effect  of  for- 
feiture and  determination  of  the  life  estate,  on  which  a  contingency 
depends.  Judge  Yeates  decisively,  the  other  judges  by  strong 
implication.  Judge.  Yeates,  observed,  that  "  the  only  question 
was,  whether  the  remainder  to  Mbel  James,  was  vested  or  con- 
tingent The  particular  estate  of  John  Parrock,  being  determined 
by  his  attainder,  the  contingent  remainder  is  gone  and  the  com- 
monwealth should  have  the  fee,  discharged  of  all  remainders  ;" 
and  this  on  the  principle,  that  the  deed  from  the  state  to  the  pur- 
chaser operated  as  a  common  recovery.  The  state,  like  the  king, 
could  not  suffer  a  recovery,  for  convenieney,  decency,  and  order. 
The  decision  of  the  late  President  Wilson,  in  the  case  of  Ration 
v.  Cornish,  is  directly  in  point,  and  though  not  binding  on  this 
court,  yet  it  was  the  opinion  of  a  judge  who  seldom  took  up  hasty 
opinions,  and  whose  legal  knowledge,  great  discretion,  and  sound 
judgment  are  held  in  high  and  deserved  respect.  But  the  multi- 
plication of  proof  is  extraordinary.  The  report  of  the  judges  on 
the  English  statutes  in  force,  is  conclusive,  for  it  recommends  the 
incorporation  by  act  of  the  legislature  of  all  the  British  acts  of 
Parliament  respecting  common  recoveries.  Now  most  of  these 
avoided  collusive. recoveries  suffered  by  tenants  for  life,  and  if  the 
effect  of  a  common  recovery  by  the  common  law  by  the  act  of  te- 
nant for  life  was  adopted  by  the  act  of  1749,  these  acts  would  be  nu- 
gatory, and  without  any  subject  to  operate  on.  But  when  a  moment 
is  occupied  in  comparing  the  provisions  of  this  act  with  a  definition 
of  a  recovery  at  the  common  law,  there  will  be  found  such  exact 
and  literal  conformity,  as  to  satisfy  the  mind  that  the  legislature, 
having  this  definition  in  their  view,  intended  the  common  recovery 
in  its  height  and  length  and  breadth  to  be  the  same  artificial  thing 
with  all  its  proportions  and  with  all  its  vigour.  By  that  act,  a  com- 
mon recovery  is  to  be  suffered  according  to  the  course  of  the  com- 
mon law  and  statute  laws  of  England,  of  lands  entailed  and  shall 
have  the  same  form  and  effect  for  barring  estates  tail.  The  argu- 
ment is  that  this  act  forbids  any  other  than  a  tenant  in  tail  from  suf- 
fering a  common  recovery.  So  likewise  do  the  British  statutes,  by 
declaring  collusive  and  void  common  recoveries  suffered  by  tenants 
for  life.  So,  the  common  recovery,  though  it  has  the  form  of  a  suit 
at  law,  and  the  effect  of  a  judgment  at  common  law,  yet  the  whole 
transaction  is  one  common  assurance,  and  the  recovery  is  a  creature 


364  •  SUPREME  COURT  [Philadelphia, 

(Lylc  and  otliers  v.  Richards.) 

and  instrument  of  the  tenant  in  tail  for  whose  benefit  the  recovery 
is  suffered.  In  Taylor  v.  Horde,  1  Burr,  60,  Lord  Chief  Justice 
Willes,  justly  says,  that  "  Mr.  Piggot  has  confounded  himself  and 
every  one  who  reads  his  book,  by  endeavouring  to  give  reasons  for, 
and  explain  common  recoveries ;  and  whoever  does  so  on  any  other 
principle  than  that  they  are  common  assurances,  will  run  into  ab- 
surdities." Willes,  75.  And  in  page  451,  the  instrument  is  thus 
defined  :  "It  is  a  conveyance  on  record,  invented  to  give  a  tenant 
in  tail  an  absolute  power  to  dispose  of  his  estate  as  if  he  were  tenant 
in  fee  :"  and  Sir  William  Blackstone,  2  Bl.  Com.  361,  defines  a  com- 
mon recovery  to  be  a  formal  mode  of  conveyance,  by  which  tenants 
in  tail  is  enabled  to  a  lien  his  lands."  This  conveyance  invented 
for  the  sole  purpose  of  clocking  estates  tail,  yet  destroys  the  particu- 
lar estate  of  a  tenant  for  life,  and  is  not  like  an  innocent  convey- 
ance by  bargain  and  sale,  as  in  M'Kee  v.  Pfoutz.  And  why  is  it, 
that  common  recovery  forfeits  the  life  estate  ?  Because  it  is  a  so- 
lemn assurance  of  record,  and  from  its  notoriety,  is  equal  to  a  feoff- 
ment and  an  investiture  coram  pares.  But  what  puts  the  forfeiture 
beyond  doubt  is,  that  James  being  vouched  and  disclaiming  of  re- 
cord, he  lost  his  estate  for  life.  Coventry  on  Recoveries,  54.  And 
this  may  distinguish  common  recoveries  from  bargains  and  sales  as 
to  the  forfeiture,  and  tend  to  support  the  opinion  of  the  Chief  Justice 
as  to  the  effect  of  a  conveyance  under  the  act  of  1799.  The  reason- 
ableness of  the  doctrine  of  forfeiture  and  rewarding  tenant  for  life  by 
giving  him  a  fee  is  objected.  This  is  confounding  two  things. 
Tenant  for  life  does  not  acquire  the  fee  simple  by  his  tortious  act. 
He  loses  his  life  estate  ;  he  gains  nothing.  It  is  only  where  he  has 
the  reversion,  that,  by  the  destruction  of  the  contingent  remainders 
he  becomes  a  gainer.  The  forfeiture  is  a  punishment  on  tenant  for 
life  for  his  disloyalty.  The  consequence  is  a  different  matter.  There 
he  is  entitled  to  the  reversion. 

It  is  this  that  brings  the  doctrine  to  the  test  of  common  reason. 
A  man  makes  a  disposition  of  a  remainder  or  future  interest,  which 
is  to  take  no  effect  until  a  future  event  or  contingency  happens.  It 
is  admitted,  that  no  interest  passes  by  such  disposition  to  any  body, 
before  the  event  referred  to  takes  place.  The  question  is,  what  be- 
comes of  the  intermediate  reversionary  interests  from  the  time  of 
making  such  future  disposition  until  it  takes  effect.  It  was  in  the 
grantor  or  testator  at  the  time  of  making  it.  It  is  confessedly  not  in- 
cluded in  it.  The  natural  conclusion  is  that  it  remains  where  it 
was,  viz.  in  the  grantor  or  testator,  and  his  heirs  for  want  of  being 
parted  with  to  any  body  else.  When  the  future  disposition  takes 
effect,  then  the  reversionary  or  future  interest  passes,  pursuant  to 
the  terms  of  it.  But  if  such  future  disposition  fails  of  effect,  either 
by  reason  of  the  determination  of  the  particular  estate,  failure  of 
the  contingency,  or  otherwise,  what  is  there  then  to  draw  the  estate, 
which  was  the  intended  subject  of  it,  out  of  the  grantor  or  his  heirs, 
— or  the  heirs  of  the  testator > — or  who  can  derive  title  to  an  estate 


March,  1823.]  OF  PENNSYLVANIA.  365 

(Lyle  and  others  v.  Richards.) 

under  a  prospective  disposition,  which  confessedly  never  takes  any 
effect  at  all.     Fearne,  364. 

The  reason  of  many  rules  of  property  has  ceased,  and  yet  the 
law  remains.  The  rule  in  Shelly's  case,  that  unbinding  and  in- 
flexible rule,  as  some  suppose  it,  which  bears  down  all  before  it, 
converting  an  estate  for  life  into  an  estate  tail,  is  of  feudal  origin, 
yet  it  continues  a  rule  of  property,  an  unbroken  pillar  of  the  com- 
mon law,  not  to  be  demolished  or  thrown  by  with  the  rubbish  of 
the  dark  ages.  Smith  v.  Chapman,  1  Hen.  8f  Mwnf.  300,  3 
Binn.  164.  Findlay  v.  Riddle.  It  has  been  remarked  by  a  very 
celebrated  author,  eminent  for  his  great  endowments  in  almost  all 
sciences,  and  considered  an  able  jurist,  "  that  nothing  is  law, 
that  is  not  reason,  is  a  maxim  excellent  in  theory,  but  danger- 
ous in  practice.  The  reason  of  Titius  may  be  different  from  that 
of  Septimus.  No  man  who  is  not  a  lawyer  would  ever  know 
how  to  act,  and  no  man  who  is  a  lawyer  knows  in  many  instances 
what  to  advise,  unless  courts  were  bound  by  authority  as  firmly  as 
the  pagan  deities  were  supposed  to  be  bound  by  the  decrees  of  fate." 
Jones  on  Bailments,  46.  It  is  my  wish  and  my  comfort,  said  a 
very  learned  judge,  to  "  stand  super  antiquas  vias  to  tread  in  paths, 
qua  relictce  stmt  et  tradice.  Those  who  are  confident  in  their 
superior  abilities  may,  perhaps,  fancy  that  they  could  erect  a  new 
system  of  laws,  less  objectionable  than  that  under  which  they  live. 
I  have  not  that  confidence  in  mine  ;  and  am  satisfied  by  the  deci- 
sions, and  series  of  decisions  of  great  and  learned  men,  on  the  rules 
of  law  under  which  the  landed  property  of  this  country  is  now 
held,  and  it  is  my  duty,  as  well  as  inclination,  to  give  effect  to 
these  rules.  I  cannot  legislate,  but  by  my  industry,  I  can  discover 
what  our  predecessors  have  done,  and  I  will  tread  in  their  footsteps. 
Authorities  established,  are  so  many  laws,  and  receding  them  un- 
settles property.  Established  maxims  as  to  the  legal  effect  of  the 
different  modes  of  conveyances,  will  render  the  decisions  of  titles 
as  little  dependent  as  the  nature  of  things  will  admit  of,  on  the  oc- 
casional opinions,  humour,  ingenuity,  or  caprice  of  the  judge,  and 
are,  therefore,  the  most  proper  and  sure  grounds  to  rest  and  depend 
upon.  For  the  judgment  being  guided  by  fixed  and  known  rules, 
will  not  be  liable  to  the  temporary  influence  which  must  necessarily 
have  a  share  in  directing  the  decisions  of  every  court  upon  earth. 
No  room  can  be  left  to  litigate  on  disputed  titles,  built  on  such  a 
stable  foundation.  Titles  so  familiar,  may  be  clearly  and  easily 
ascertained,  and  under  them  a  permanent,  and  pacific  enjoyment 
may  be  inherited.     Fearne  on  Cont.  Rem.  170. 

Insecurity  of  titles,  as  we  have  experienced  in  the  controversy 
between  the  actual  settlers  and  the  warrantees,  tends  much  more 
to  clog  the  circulation  of  property,  and  impede  the  settlement  and 
improvement  of  the  country,  than  even  obstructions  growing  out 
of  perpetuity.  On  what  foundation  does  the  whole  doctrine  of 
common  recovery  stand,  which  takes  away  the  estate,  that  the  sta- 


366  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards) 

tute  de  don  is  meant  to  be  unalienable  from  the  issue  in  tail  ?     On 
the  ground  of  receiving  a  recompense  ?     On  what  ground  of  reason, 
the   rule  of  collateral  warranty,  either  with,  or  without  assets  de- 
scending on  the  heir,  which  stripped  him  of  his  estate,  but  some 
rigid  rule  of  law  ?     These  rules  may  sometimes  press  hard  on  indi- 
viduals, yet  aFe,  notwithstanding,  the  laws  of  the  land,  and  it  is  an 
answer  to  all  this  objection,  to  say  ita  lex  scripta  est.     Courts,  says 
Judge  Patterson,  in  the  discharge  of  the  judicial  function  have  often 
occasion  to  exclaim  durum  valde  dxtrum  est,  sed  ita  lex.    Contingent 
remainders,  liable  to  extinction  by  the  determination  of  the  estate  on 
which  they  depend,  and   whose  support  they   require,   being  re- 
ceived as  a  rule  of  law,  it  must  continue  to  be  so  while  the  subject 
of  it  exists,  until  altered  by  some  solemn  act  of  legislation.     It  can- 
not remain  unregulated,  subject  to  judicial  discretion,  until  the  le- 
gislature should  make  a  law  respecting  it.     For  this  would  open  a 
door  to  all  the  uncertainty,  confusion,  and  disorder,  which  laws  are 
made  to  obviate  and  prevent.     Fearne,  88.     I,  however,  am  free 
to  confess,  that  my  mind  is  not  troubled  with  any  compunctious 
visitings,   and  had  I   not  been  fettered  with  authority,  I  have  no 
wish  here,  if  wishes  could  be  indulged,  to  give  effect  to  the  pos- 
thumous family  pride  of  this  testator.     Nor  do  I  think  it  any  breach 
of  duty  in  James  and  Andrew  Hamilton,  to  endeavour  to  come  at 
the  inheritance  by  any  mode  the  law  will  allow  of:  and  if  the  re- 
spectable testator  was  permitted  to  revisit  this  world,  this  property 
and  its  present  state,  and  the  present  state  of  the  family  whom  he 
intended  to  provide  for,  he  would  rejoice  to  find,  there  was  disco- 
vered an  expedient  in  the  law  to  disappoint  his  vain  design  that 
his  estate  should  not  be  inherited  by  any  human  being  who  breathed 
the  same  air  with  him,  and  defeat  his  proud  view  of  aggrandizing 
some  unknown  son  of  an  unknown  ancestor,  at  the  expense  of  all 
his  living  representatives.     But  the  consideration  has  not  weighed 
a  feather  in  the  construction  I  have  given  to  the  effects  of  a  com- 
mon recovery.     When  at  the  bar  I  had  fallen  into  errors.;  perhaps, 
led  astray  by  the  apparent  unreasonableness  of  the  rule,  and  con- 
firmed in  this  error  by  the  misapprehension  of  the  principles  on 
which   MQKee   v.   Pfoulz,  was   decided.      For,  at  the  time  it  was 
generally  understood,  that  the  same  doctrine  would  apply  to  com- 
mon recoveries,  and  this  error  was  strengthened  by  the  narrative  of 
Judge  Shippen.     From  the  very  full  discussion,  for  the  arguments 
have   certainly   included  every  thing  that  could  be  said  on  both 
sides   of  the  question,  from  the   decisive   evidence  of  the   use  of 
common  recoveries  at  the  common  law  before  the  act  of  1749,  and 
a  conviction  that  the  act  of  1749,  as  well  as  the  act  of  1799,  left 
their  effect  unimpaired,  and  on  a  patient  investigation,  after  much 
reflection,  I  acknowledge  my  error,  and   am  now  as  fully  satisfied, 
that  a  common  recovery  sufferered  by  tenant  for  life,  determines  his 
estate  by  forfeiture,  and  destroys  all  contingent  remainders  depen- 
dant on  that  estate,  as  that  a  grant  to  a  man  and  his  heirs,  gives 


March,  1823.]         _  OF  PENNSYLVANIA.  367 

(Lyle  and  others  v.  Richards.) 

him  a  fee  simple  ;  and  I  am  as  far  from  thinking  that  it  is  quite  so 
sure,  that  the  rule  was-without  good  reason,  as  that  the  reason  has 
ceased.     The  necessity  under  the  feudal  system,  that  there  should 
be  always  some  one  ready  to  perform  the  lord's  services,  was  not 
the  only  reason  which  introduced  the  maxim  of  the  common  law, 
that  the  freehold  can  never  be  placed  in  abeyance.     It  had  a  better 
foundation  which  continues  still  to  exist,  and  to  exist  in  Pennsyl- 
vania, that  there  should    be  always  some  person   to  answer  the  real 
action,  brought  for  the  recovery   of  the  property.     Grants    which 
would  place  the  freehold  in  abeyance,  or  delay  a  suit,  or  after 
any  short  interval,  cease  the  estate  to  one  person,  and  then  give  it 
to  another,  and  so  alternis  vicibus,  would  be  most  pernicious.     A 
person  who  has  a  right    of  action,  would  in  one  case,  dower,  be 
defeated  altogether,  and  in  another  case,  partition,  be  greatly  de- 
layed, and  the  policy  of  the  rule  which  denies  to  the  owner  the 
power  of  putting  the  freehold  in  abeyance,  is,  in  fact,  effectually 
attained  by  the  rules  applicable  to  contingent  remainders,  by  pre- 
cluding them  from  effect,  unless  they  vest  in  interest  during  a  pre- 
ceding estate  of  freehold,  or  in  the  same  instant  the  particular  es- 
tate determines.     See   4  Preston  on  Estates,  254,  255.     For  if  a 
freehold  could  pass  to  commence  infuturo,  there  would  be  an  abey- 
ance, and  want  of  a  tenant  against  whom  to  bring  a  precipe,  and 
the  law  will  not  suffer  the  land  to  be  in  abeyance  a  single  day,  if 
possible,  to  prevent  this.     For  if  it  might  be  without  a  tenant  for 
one  day,  why  not  for  fifty  years?     Vernon  v.  West,  2    Wils.  165, 
by  Pratt,  Chief  Justice.     There  are  several  cases  in  which  a  real 
action  will  lie  in  Pennsylvania.     Assise  of  nuisance  is  one.    Live- 
zey  v.    Gorgas,    2  Binn.    192:    Quod  permittat    prosternere,  was 
maintained  at  Nisi  Prius  at  Chambersburg :     A  writ  of  waste,  in 
which  the  place  wasted  is  recovered;  but  the  mischief  is  not  so 
great  for  the  want  of  a  tenant,  as  the  party  might  have  other  reme- 
dies.    There  are,  however,  two  cases  which  would  be  without  re- 
medy, dower,  and  partition,  as  there   w7ould  be  no  tenant  of  the 
freehold,  against  whom  to  serve  the  writs,  and   they  could  not  be 
against  tenant  at  will,  or  for  years.     I  know  not  of  any  direct  de- 
cision as  to  dower  in  this  state,  but  from  the  nature  of  the  demand 
and  recovery,  it  must  be  so,  2   El.  183.     In  Parker  v.  Murphey 
12  Mass.  415,  it  was  decided,  that  a  writ  of  dower  lies  only  against 
him  who  is  seised   of  an  estate  of  freehold,  or  inheritance.     The 
writ  of  dower  unde  nihil  habet,  is  a  writ  of  entry,  which  lies 
where  the  widow  is  deforced  of  all  her  dower.     The  writ  of  right 
of  dower,  is  a  more  general  remedy,  extending  either  to  part,  or 
the  whole,  and  is  of  the  same  nature  as   the   grand  writ  of  right. 
So  that  if  dower  were  partially  assigned,  the  widow's  only  remedy 
is  the  writ  of  right.     But  it  would  be  difficult  to  support  any  action 
of  dower  against  the  tenant  for  years,  or  at  will :  for  if  it  could  be, 
he  would  have  judgment  against  him  for  the  damages  also,  although 
from  the  nature  of  his  estate  he  could  not  be  supposed  to  have  ex- 


368  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

pected  any  such  liability,  nor  to  have  provided  in  any  way  for  in- 
demnity against  it.  Damages  in  dower  are  given  by  statute  of  Mer- 
ton,  and  the  reason  why  the  jury  are  to  find  the  value  of  the  land, 
in  case  the  husband  died  seised,  is,  that  the  court  may  give  da- 
mages, pursuant  to  the  statute,  from  the  death  of  the  husband  to  the 
time  of  the  judgment,  and  if  the  heir  sell  to  J.  S.,  and  the  widow 
recover  her  dower  against  him,  he  must  pay  the  whole  mesne  profits, 
from  the  death  of  her  husband  ;  although  he  has  not  been  the  half 
of  the  time  in  possession.  Bull.  JYisi  Prius,  115,  6  Johns.  290. 
In  Miller  v.  Beverly1  s  Widow.  1  Henn.  8f  Munf.  368,  it  was 
decided,  that  a  writ  of  dower  uncle  nihil  habet,  cannot  be  maintained 
against  a  tenant  for  years,  but  must  be  brought  against  the  tenant 
of  the  freehold.  It  lies  only  against  the  tenant  of  the  freehold,  F. 
N.  B.  148.  It  is  clear  law,  that  partition  will  only  lie  against  the 
tenant  of  the  freehold.  Bethel  v.  Lloyd,  et  al,  1  Dall.  2,  and  1 
Binney  1,  Lit.  Rep.  300.  It  was  doubted,  whether  it  could  be 
supported  by  tenant  of  the  curtesy.  Walker  v.  Dilworthj  2  Dall. 
2bl.  But  if  the  reason  of  the  law  has  ceased,  it  is  for  the  legisla- 
ture to  say  the  law  shall  cease,  and  Lord  Chief  Justice  Pratt, 
though  he  acknowledged  this  doctrine  had  little  foundation  now  to 
rest  on,  with  emphasis  said,  "  we  must  not  overthrow  the  established 
principles  of  the  law,"  and  he  wTas  no  slavish  adherent  to  antiquated 
notions,  2  Wils.  169. 

I  may  state,  as  a  matter  of  judicial  history,  that  British  Judges 
regret  the  existence  of  this  rigid  rule,  and  that  as  they  never  will 
construe  a  devise  to  be  executory,  when  they  can  construe  it  a  con- 
tingent remainder,  so,  if  there  is  any  thing  in  the  conveyance  or 
will,  by  which  it  can  be  supported  as  a  vested  remainder,  they 
will  never  consider  it  contingent.  And  although  equity  cannot  in- 
1  terpose  where  there  is  no  trust,  yet  it  views  the  destruction  of  con- 
tingent remainders  in  the  light  of  a  wrong  or  tort,  and  makes  every 
possible  effort  to  extend  its  protection  against  them.  It  is  said, 
that  Lord  Kenyon  had  prepared  a  bill  for  the  House  of  Peers,  but 
withdrew  it  on  some  preliminary  objections,  in  a  fit  of  vexation. 
But  this  did  not  rudely  remove  a  key-stone  in  the  arch  of  the 
Gothic  edifice.  It  filled  up  the  vacuum,  and  preserved  the  sym- 
metry, by  converting  the  tenant  for  life  into  a  trustee  to  support 
the  remainders,  eo  instanti,  he  destroyed  the  particular  estate. 
And  there  could  be  nothing  more  simple  than  this  plan.  But  this 
is  matter  for  legislative  enactment,  not  for  judicial  decision.  The 
present  chancellor  seems  to  doubt,  whether  a  Court  of  Equity 
would  compel  a  purchaser  to  accept  of  a  title  depending  on  the  de- 
struction of  a  contingent  remainder.  But  the  law  continues  the 
same,  that  if  a  tenant  for  life,  contingent  remainders  to  his  first  and 
other  sons,  destroys  the  contingent  remainders,  that  is  no  breach  of 
trust,  and  equity  will  not  interpose.  Fearne  on  Cont.  Rem.  315. 
For  fn  Mansell  v.  Mansell,  2  P.  Wms.  678,  it  was  resolved,  by 
the  chancellor,  with  the  concurrence  of  Lord  Chief  Justice  Ray- 


March,  1823.]  OF  PENNSYLVANIA.  369 

(Ly!e  and  others  v.  Richards.) 

mond,  and  Chief  Baron  Reynolds,  that  where  an  estate  is  limited 
to  A.  for  life,  remainder  to  his  first,  and  all  his  other  sons  in  tail, 
though  it  be  a  plain  tort  and  wrong  in  him  to  destroy  the  contin- 
gent remainders  before  the  birth  of  a  son.  notwithstanding;  he  has 
legal  power  so  to  do,  yet  as  in  this  case,  he  is  no  trustee,  and  there- 
fore, no  trust.  There  can  be  no  breach  of  trust  consequently,  and 
therefore,  a  Court  of  Equity  may  have  no  cognizancen  or  handle  for 
relief,  the  matter  being  left  purely  to  the  common  law.  But  to  pre- 
vent this  inconvenience,  a  remedy  has  been  invented  of  appointing 
trustees,  on  purpose  to  disable  the  tenant  for  life  from  doing  such 
injury  to  his  issue,  which  is  not  a  very  old  invention.  This  solemn 
resolution  which  has  been  received  and  considered  as  the  approved 
doctrine  of  the  law,  is  decisive.  If  it  is  so,  as  it  most  certainly  is, 
the  effect  of  a  common  recovery  by  tenant  for  life  in  England  to  de- 
stroy a  contingent  remainder  depending  on  his  particular  estate, 
and  if  a  common  recovery  suffered  since  the  act  of  1749,  has  the 
same  effect  as  a  common  recovery  in  England,  as  I  now  am  of 
opinion  it  has,  (I  speak  with  great  deference  to  Judge  Gibson,  who 
holds  a  different  opinion,)  it  follows  that  the  plaintiffs  in  the  case 
stated,  are  entitled  to  judgment. 

In  coming  to  this  conclusion,  it  has  had  its  due  weight  with  me, 
without,  I  trust,  producing  an  improper  influence  or  unfair  bias  so 
as  to  blind  my  own  understanding  or  deceive  my  judgment,  that 
those  proceedings  were  advised  and  conducted  by  two  gentlemen 
of  great  professional  knowledge  ;  and  the  purchase  by  the  Bush 
Hill  company  was  made  on  the  strength  of  their  legal  opinions. — Of 
the  survivor,  and  in  his  presence,  without  offence  to  his  delicacy 
and  the  imputation  of  flattery,  I  cannot  say  how  highly  I  prize  his 
legal  opinions  :  but  I  may  speak  of  the  dead  with  greater  freedom  ; 
— of  the  late  Mr.  Edward  Tilghman,  whom  it  gives  me  pride  and 
pleasure  to  say  I  knew  long  and  knew  well,  and  from  whom  in  my 
early  professional  concerns,  I  received  much  useful  instruction. — 
His  attention  to  young  men  in  the  profession  was  one  among  the 
many  honourable  traits  that  distinguished  him  at  the  bar.  Of  him 
I  can  truly  say,  that  I  never  knew  any  man  that  had  this  intricate 
branch  of  the  law  so  much  at  his  finger's  end.  With  all  others, 
with  whom  I  have  had  professional  intercourse,  it  was  the  work  of 
time  and  consideration  to  comprehend  ;  but  he  took  in,  with  one 
glance,  all  the  beauties  of  the  most  obscure  and  difficult  limitations. 
With  him  it  was  intuitive,  and  he  could  untie  the  knots  of  a  con- 
tingent remainder  or  executory  devise,  as  familiarly  as  he  could  his 
garter  ;  and  his  name  adds,  with  me,  some  sanction  to  those  pro- 
ceedings. 

The  usage  of  eminent  conveyancers  has  settled  the  forms  and 
construction  of  conveyances.  At  an  early  day,  they  were  fixed  by 
Bridgman,  Palmer,  and  other  distinguished  men.  In  latter  days, 
conveyancing  has  become  a  peculiar  province,  and  an  important 
department  of  the  law  ;  and  there  have  appeared  many  great  men  in 

vol.  ix.  3  A 


370  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.   Richards.) 

that  branch  ;  Booth,  Fearne,  Hargrove,  Preston,  and  others,  by  whose 
opinion  and  advice  the  landed  property  in  England  has  been  guided, 
either  in  alienations  or  family  settlements.  Their  usages  though 
they  do  not  make  the  law,  are  strong  evidence  of  it,  and  respected 
in  courts  of  justice:  and  though  they  may  not  agree  with  them 
in  principle,  yet  they  will  not  disturb  or  unsettle  property  by  changing 
this  usage. 

I  have  employed  much  of  my  own  time  and  reflection  to  under- 
stand the  question ;  and  all  my  humble  faculties  to  give  to  this  im- 
portant cause,  a  decision  consistent  with  the  laws  of  the  land  ;  and 
I  feel  I  have  trespassed  too  long  on  the  public  time  and  patience. 
But  the  occasion  seemed  to  me  to  call  for  a  full  explanation  of  the 
reasons  of  my  present  opinion,  so  different  frorn  the  opinion  it  was 
well  known  I  entertained  and  often  publicly  expressed.  And  the 
wide  field  necessarily  opened  by  counsel,  on  the  whole  doctrine  of 
the  CGmmon  law,  as  applied  to  our  tenures,  and  the  various  topics 
that  naturally  crowd  on  the  mind  in  considering  it,  have  extended 
my  observations  far  beyond  my  original  intentions  :  which  were,  to 
deliver  my  sentiments  with  precision  and  as  succinctly  as  possible. 
In  the  latter  view,  perhaps  in  both,  I  have  failed.  I  come  now  to 
consider  other  views  which  have  been  taken  of  this  case,  on  the 
second  argument.  It  is  contended  by  the  counsel  of  the  defendant, 
that  admitting  a  common  recovery  to  have  the  same  consequences 
that  as  in  England  this  common  recovery  could  not  produce  a 
forfeiture  of  Jameses  life  estate  •;  it  would  be  innocent,  and  would 
bar  the  tenant's  estate  in  James,  leaving  undisturbed  all  the  inter- 
mediate estates. 

I  proceed  to  this  inquiry,  unconnected  with  other  considerations 
and  other  doctrines,  which  will  be  hereafter  alluded  to.  James 
the  second,  would  be  tenant  for  life  in  possession,  contingent  re- 
mainder to  his  first  and  other  sons  in  succession  for  life  ;  and  to  his 
sons  in  succession  in  tail  male ;  and  so  to  Andrew  the  second,  and 
his  sons,  &c,  with  remainder  in  tail  general  to  James,  with  remain- 
der in  interest,  but  not  in  possession,  in  default  of  all  such  issue  re- 
mainder or  reversion  to  the  right  heirs  of  testator.  The  reason  why 
the  tenant  for  life  forfeits  his  estate  is  because  it  is  considered  as  a 
proper  punishment  for  attempting  an  act  inconsistent  with  his  tenure, 
and  calculated  to  injure  those  in  remainder.  But  the  law  will  never 
punish  a  man  for  doing  that  which  is  consistent  with  the  nature  of 
his  estate,  and  may  have  a  legal  operation.  Here  James  stood  in 
two  characters  ;  he  was  tenant  for  life,  remainder  in  tail  in  esse.  This 
remainder  in  tail  to  himself,  being  tenant  for  life  in  possession,  he 
might  legally  bar.  He  has  not  taken  on  him  to  do  any  act  inconsis- 
tent with  the  nature  of  his  estate  ;  the  tenant  to  the  praecipe  being 
made  by  bargain  and  sale.  Fearne,  322.  Coventry  on  Recoveries, 
136.  My  opinion  is,  that  the  recovery,  even  if  Andrew  had  not 
been  vouchee,  would  not  have  been  a  forfeiture  of  Jameses  life  es- 
tate. 


March,  1823.]  OF  PENNSYLVANIA.  371 

(Lyle  and  others  v.  Richards.) 

It  is  clear,  that  Andrew,  by  being  vouchee  and  entering  into  the 
warranty,  determined  his  life  estate  ;  whether  by  forfeiture,  estop- 
pel, or  cession  to  James,  by  the  deed  to  lead  the  uses  and  recovery, 
can  make  no  difference.     There  then  remained  in  no  one  any  par- 
ticular estate   of  freehold   to    support   the  contingent  remainders^ 
Andrew  had  no   estate  which  he  could  enlarge.     It  is  immaterial,- 
whether  he  was  a  necessary  party  to  the  recovery  or  not.      If  he 
was  not,   it  was  a    disloyal  intermeddling  on  his  part.     But  he 
avowed  himself  to  be  a  necessary  party  on  the  record,  by  entering 
into  the   warranty  ;   and  this  would  create  a  forfeiture,  though  he 
did  not  enlarge  his  own  estate.     The  proceedings  in  a  common  re- 
covery are  considered   to  be  in  reality  what  they  purport  to  be,  a 
real  action  between  real  parties.     Andrew  appeared  as   a  party  in 
this  real  action,  challenged  the  fee  in  a  Court  of  record,  warranted 
his  title  to  the  fee.     Now  a  tenant  for  life  may  forfeit  his  estate  in 
four  manner  of  ways  :  by  matter  of  record,  by  alienation  by  feoff- 
ment, by  claiming  a  greater  estate  than  he  ought,  and  by  affirming 
the  remainder  or  reversion  tobe  in  a  stranger.     By  claim  ;  as  if  tenant 
for  life,  will,  in  a  Court  of  record,  claim  a  fee,  implied  ;  as  if  in  a' 
writ  of  right,  he  will  take  upon  him  to  join  the  mise  upon  the  mere 
right,  and  which  none  but  tenant  in  fee  simple  ought  to  do;     So  if 
a  tenant  for  years  bring  a  praecipe  and  lose,  and  then  bring  a  writ 
of  error,  this  is  a  forfeiture.     Co.  Lit.  2bl.     If  a  tenant  for  life 
claim  a  fee,  this  is  a  forfeiture.     So,  if  he  ehallengeth,  in  a  Court 
of  record,  a  greater  estate  than  he  hath.     See  Pelham,s  case,  2  Leo, 
66.       For  the  bare  attempt  to  do  a  wrongful  act  or  unlawful  things 
though   void,  creates   a  forfeiture.     Parkhurst  v.  Dormer,  Willes, 
343.     The    question    is,    could  Andrew  enter  on  Jameses  death  ? 
was  he  not  estopped  ?     Estoppels  are  of  three  kinds  :  matter  of  re- 
cord, in  writing,  or  act  in  pais.     The  acceptance  of  rent  is   of  the 
last  sort.     The  estoppel  by  record  is  founded  on  this-,  that  what  a 
man  hath  once  solemnly  alleged,  he  shall  not  be  suffered  to  contra- 
dict.    Anderson's  Appeal,  4  Yeates,  39.     If  the  recovery  was  a  real' 
proceeding,    no    one    could    doubt   the    estoppel.       Substantially, 
it  is  a  real  suit.     If  not  a  real  suit,  it  is  nothing.     It  is  a  real  suit,, 
a  writ  against  the  tenant,  who  must  be  tenant  of  the  freehold-*- 
appearance  of  the  tenant — a  count  against  the  tenant — voucher  of  the 
party  who  conveys-  to  the  tenant — voucher  over — judgment  ulti- 
mately recovered  by  the  demandant,  and  recompense  in  value  from' 
the  last  vouchee.     If  this  was  a  real,  adverse  proceeding,  unques- 
tionably Andrew's  estate,  whatever  it  was,  was  gone,  and  a  recom- 
pense in  value  recovered  by  him  from  the  last  vouehee.     In  an  ad- 
verse suit,  Andrew  could  not  falsify  the  record,  as  every  man   is 
bound  by  every  material  admission  he  makes  on  record.     This  estop- 
pel precludes  Andrew  and  all  claiming  under  him  from  gainsaying 
the  fact,  that  he  has  lost  his  estate,  and  recovered  the  value  of  it 
from  the  last  vouchee.     There  was  no  occasion  for  ao  actual  entry. 
This  is  only  necessary  to  avoid  a  fine,  or  the  statute  of  limitations. 


372  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

But  if  an  actual  entry  were  necessary,  James,  when  he  conveyed 
to  the  defendant  by  his  attorney,  was  in  the  actual  possession. 
The  benefit  of  estoppel  will  ensure  to  the  use  of  the  party  to  whom 
the  right  might  have  been  released,  or  as  if  the  recovery  had  been 
a  release,  and  the  party  in  possession  may  take  advantage  of  it,  to 
conclude  the  party  suffering  it,  from  claiming  the  land,  contrary  to 
his  own  act.  2  Co.  52.  Coventry  on  Recoveries,  195.  From  what- 
ever cause,  by  whatever  means,  Andrew's  estate  was  extinguished, 
the  right  of  entry  and  the  possession  were,  on  its  determination, 
both  in  James,  as  well  as  the  title  in  fee  simple.  Remainders  must 
always  take  effect  in  regular  order  and  succession,  according  to  the 
order  in  which  they  are  limited,  and  without  any  interval,  and  no 
remainder  can  take  effect  in  the  possession  otherwise  than  on  the  re- 
gular determination  of  the  estate  by  which  it  is  preceded.  Preston 
on  Estates,  119,  284. 

The  person  who  is  the  testator's  heir  at  law  will  have  the  rever- 
sion of  the  estates,  until  the  fee,  when  limited  in  contingency,  shall 
vest  in  interest,  Fearne,  373.  And  where  the  devisee  of  the  fee 
is  in  such  case  the  testator's  heir  at  law,  the  fee  must  descend,  and 
such  heir  at  law  take  by  descent.  Carter  v.  Bamadiston,  1  P. 
Wins.  513.  For  in  all  such  cases,  where  the  devisee  is  heir  at  law 
of  the  testator,  he  is  heir  of  the  reversion  undisposed  of,  just  as  if 
the  testator  had  died  intestate.  Slifer  v.  Beates,  decided  the  last 
term  in  this  court.  The  reversionary  interest  descended  to  Andrew, 
the  first,  not  as  a  purchaser  or  person  described,  but  in  the  quali- 
ty and  character  of  heir,  and  on  his  death  descended  to  his  heir. 
For  this  reversion,  though  after  an  estate  tail,  was  still  an  estate  in 
him.  Preston  on  Estates,  316.  This  consideration  will  be  of 
importance  in  a  further  inquiry.  We  see  the  necessity  of  a  double 
vouchee:  of  Andrew  being  brought  in  as  vouchee,  and  the  reason 
why  James  conveyed  to  Andrew  one  third  of  the  fee.  It  is  the 
effect  of  a  common  recovery  with  a  double  voucher,  to  bar  the  first 
vouchee  and  his  heirs,  of  such  estate  as  was,  at  any  time,  in  him, 
and  all  others  of  such  right  in  remainder  or  reversion,  as  was  at  any 
time  dependent  and  expectant  on  the  same.  Pigot,  Recov.  1.  A 
contingent  remainder  cannot  be  passed  or  transferred  at  law  before 
the  contingency  happens  ;  otherwise  than  by  way  of  estoppel  or 
fine,  or  by  common  recovery,  where  the  person  entitled  to  the 
particular  estate  comes  in  as  a  vouchee. 

The  doctrine  of  estoppel  is  thus  applied  to  Andrew's  life  estate. 
The  particular  estate  which  on  the  regular  determination  of  James's 
freehold  estate  in  possession,  was  to  succeed  it,  and  support  the 
contingent  remainders,  Andrew,  by  being  vouched,  was  incapable 
of  taking  at  James's  death,  and  the  contingency  on  which  it  was 
to  arrive,  not  having  happened,  the  right  of  entry  was  in  James, 
wbne  estate  entail  was  changed  into  a  fee.  For  he  was  the  only 
^eenon  in  whom  the  whole  reversionary  fee  simple  vested.  It  is  ad- 
miKid,  nay  contended  for  by  the  defendants,  that  James  acquired 


March,  1823.]  OF  PENNSYLVANIA.  373 

(Lyle  and  others  v.  Richards.) 

nothing1  by  the  recovery,  but  what  he  might  leg-ally  do.  He  then  le- 
g-ally acquired  Andrew's  life  estate,  and  the  recovery  was  innocent. 
What  follows  ?  It  follows,  that  James  then  held  the  life  estate  of 
Andrew.  For  Andrew  never  could  falsify  the  recovery,  nor  deny 
the  operation  of  the  deed  to  lead  the  uses,  to  which  he  was  a  party, 
and  ag-ainst  whom,  in  contemplation  of  law,  there  was  a  recovery 
in  a  real  action,  and  he  recovered  over  from  the  common  vouchee, 
full  recompense  in  value  for  all  he  lost.  But  this  was  a  recovery 
with  treble  voucher,  and  the  recovery  with  treble  voucher  is  to  make 
a  perpetual  bar  of  the  estate  whereof  the  tenant  was  seised,  and  of 
every  such  estate  of  inheritance,  as  at  any  time,  had  been  in  the 
first  or  second  vouchee,  or  the  ancestor  whose  heirs  they  are,  as  well 
as  of  every  reversion  then  depending-,  as  also  of  all  estates,  classes, 
incumbrances,  and  leases,  derived  out  of  any  reversion  or  remainder. 
Pigott,  2.  Andrew  had  an  estate  for  life,  derived  out  of  the  re- 
mainder, which  thereby  became  perpetually  barred.  A  common  re- 
covery does  not  only  bar  the  issue's  remainder  and  reversions,  but 
estops  all  parties,  and  therefore  if  tenant  in  dower,  or  a  jointress  join 
in  a  common  recovery,  she  is  barred.  Pigott,  123.  All  are  barred 
by  a  common  recovery  that  cannot  falsify,  lb.  124.  In  the  famous 
case  of  Pells  and  Brown,  the  Magna  Chart  a  of  executory  de- 
vises, Cro.  Jac.  592, it  was  held,  that  a  devise  to  A.  and  his  heirs; 
and  if  he  die  without  issue  in  the  life  time  of  C,  then  to  C.  and  his 
heirs  ;  if  A.  enter  and  suffer  a  common  recovery,  without  vouching" 
C,  C.  is  not  barred,  because  no  recovery  in  value  extended  thereto, 
unless  he  had  been  a  party  by  way  of  voucher,  and  then  it  should. 
For  by  entering-  into  the  warranty,  he  g-ave  all  his  possibility,  and, 
therefore,  the  court  agreed,  to  the  case  which  was  cited  by  Daven- 
port at  the  bar,  to  be  judged,  34  Eliz.,  where  a  mortgagee  suffers 
a  recovery,  it  shall  not  bind  the  mortgagor.  But  if  he  had  beeu 
party  by  way  of  voucher,  it  had  been  otherwise.  James  could  not 
bar  the  intermediate  vested  life  estate  of  Andrew :  but  as  Andrew 
came  in  by  way  of  voucher  by  entering  into  the  warranty,  he  passed 
all  his  possibility  to  him.  If  James  only  enlarged  his  own  estate 
into  a  fee,  and  gained  nothing  from  Andrew,  it  must  be  because  the 
recovery  as  to  Andrew's  life  estate  was  tortious.  If  tortious,  then 
both  the  particular  estates  of  James  and  Andrew  are  forfeited.  If 
not  tortious,  then  James  acquired  Andrcio's  life  estate,  he  had  then 
all  the  vested  freeholds  uuited  with  the  fee  simple,  acquired  by  the 
recovery  enlarging  his  es-tate  tail  into  a  fee  simple.  There  was  then 
nothing  to  support  the  contingent  remainders,  this  consolidation 
merging  all  the  particular  estates.  So  that  whether  the  act  of 
James  was  tortious  or  innocent,  the  contingent  estates  are  gone. 
The  perpetuity  of  ownership  enabled  the  testator  to  make  as  many 
limited  estates  as  he  pleased,  subject  only  to  be  defeated  by  a  person 
who  has  the  estate  tail  in  possession,  or  by  the  owner  of  a  remote 
estate  tail,  when  he  prevails  ou  the  tenant  of  the  immediate  freehold 


374  SUPREME  COURT  [Philadelphia, 

(Ljle  and  others  v.  Richards.) 

to  join  with  him  in  the  recovery.  1  Preston  on  estates,  118.  By 
the  recovery  James  acquired  the  ultimate  fee.  Then,  as  is  said  by 
Lord  Chief  Justice  Hale  in  Purefery  v.  Rogers,  2  Saund.  386,  his 
particular  estate  merged  in  the  reversion,  and  the  contingent  remain- 
der is  gone,  though  there  be  no  divesting  of  any  estate.  And  he 
puts  this  very  case  :  A.,  tenant  for  life,  remainder  in  tail  in  contin- 
gency, remainder  in  tail  in  esse,  and  the  tenant  for  life,  and  he  in 
remainder  in  tail  in  esse  levy  a  fine  ;  this  is  no  discontinuance,  or 
vesting  of  any  estate,  and  yet  the  remainder  is  gone. 

But  there  is  another  View  of  the  subject,  without  considering  the 
effect  of  the  recovery,  that,  in  my  mind,  is  equally  conclusive. 

The  counsel  for  the  defendant  with  much  earnestness  and  ability, 
well  knowing  its  importance  to  have  it  so  considered,  contended, 
that  in  default  of  all  such  issue,  was  not  a  limitation  to  the  right  heir 
of  the  testator,  but  a  contingent  remainder  to  the  heir,  at  the  time  of 
failure  of  issue,  as  a  purchaser.  He  has  failed  to  convince  me  of 
this.  For  in  default  of  such  issue,  is,  indefinite  failure  of  issue,  in- 
cluding all  issue  ad  infinitum.  The  intention  of  the  testator  is 
plain.  The  estate  was  to  be  preserved  in  the  family  of  his  nephews, 
so  long  as  there  were  any  issue  of  them  remaining,  and  the  limita- 
tions over  to  the  right  heirs  of  the  testator,  was  not  to  take  effect, 
until  their  indefinite  failure  of  issue.  The  ultimate  fee  remained  in 
his  heirs  until  the  contingency  took  place,  which  vested  the  inheri- 
tance. It  has  no  relation  to  the  doctrine  of  possessio  fralis :  for 
there,  there  must  be  an  actual  seisin.  In  cases  of  executory  devises, 
as  in  Goodright  v.  Searle,  2  Wils.  29,  there  can  be  no  merger. 
Where  a  fee  simple  is  first  devised,  and  on  that  another  fee,  the 
second  can  have  no  existence  until  the  event  is  to  take  place,  on 
which  the  substituted  fee  is  to  arise.  Not  like  the  case  of  reversion, 
because  the  testator  has  nothing  to  vest.  It  was  impossible  for  it  to 
merge  before  it  had  an  existence.  If  it  could  be  extinguished  by 
merger,  it  must  be  by  its  union  with  a  greater  estate,  out  of  which 
it  is  to  be  considered  as  a  part,  or,  at  least,  an  extraction.  But  how 
can  two  estates  so  unite,  or  one  become  blended  with,  or  absorbed 
in  another,  when  both  are  of  equal  measures,  viz.  both  fee  simple  : 
and  of  which  the  one  cannot  commence  an  existence  at  all,  but  in 
the  event  which  destroyed  and  annihilated  the  other.  Fearne,  561. 
But  this  is  quite  different.  It  is  a  case  of  a  limited  estate  and  a 
reversionary  fee,  consisting  in  the  same  person,  and  in  such  case, 
an  estate  for  life,  or  a  fee  simple  conditional  at  the  common  law, 
and  the  reversionary  interest  of  the  party  who  granted  it,  vesting 
in  the  same  person,  creates  a  merger.  A  fee  simple  is  the  largest 
estate  which  a  person  can  have,  and  may  be  divided  into- different 
parts  consisting  of  particular  estates  ;  and  when  the  limited  or  con- 
ditional estates  unite  again  in  the  same  person,  they  form  again  one 
entire  estate.  Merger  applies  uniformly  to  estate,  and  takes  place 
independently  of  any  intention  of  the  party,  as  often  as  to  estates 
carved  out  of  the  same  fee,  unite  in  the  same  person,  one  of  which 


March,  1823.]  OF  PENNSYLVANIA.  375 

(Lyle  and  others  v.  Richards.) 

is  larger  than  the  other,  which  receives  it,  and  that  one  must  always 
be  a  remainder,  and  there  can  be  no  remainder  after  a  fee  simple, 
and  therefore,  no  merger.  But  here  there  were  two  intermediate 
estates  for  life,  united  in  James,  which  unite  as  both  the  estates  of 
James  and  Andrew  did  with  the  fee  in  James.  These  estates  became 
absorbed  in  the  fee  simple.  But  James  by  recovery,  acquired 
an  absolute  fee  simple,  subject  to  the  intermediate  contingent  es- 
tates, and  there  could  not  be  an  absolute  and  a  qualified  fee  in  the 
same  person.  Tregonwell  v.  Strachan,  5  T.  R.  107.  In  the 
notes  delivered,  16  Geo.  3.  For  the  common  recovery  passes  not 
a  bare  fee.  The  reversion  does  not  take  place  as  if  tenant  in  tail 
had  died  without  issue,  but  passes  a  full,  absolute,  unlimited,  and 
rightful  fee,  and  passes  the  fee  in  the  same  manner  as  the  fee  is  pass- 
ed by  a  feoffment  of  tenant  in  fee.  Where  there  are  two  succes- 
sive fees,  the  second  is  not  the  old  reversion,  waiting  on  the  limited 
fee,  and  constantly  in  esse  whilst  that  limited  fee  continues,  but  is 
a  new  fee  which  will  never  be  in  esse,  until  the  limited  fee  ceases : 
and  no  act  done  by  the  owner  of  the  limited  fee,  during  its  conti- 
nuance, will  enable  the  person  who  has  the  chance  of  the  second  fee, 
to  interfere  with  him.  But  here,  all  the  estates  were  concurrent, 
not  successive,  or  shifting,  and  this  distinguishes  the  cases.  Con- 
sider this  as  if  no  recovery  had  been  suffered.  The  reversion  de- 
scended to  Andrew,  the  nephew,  the  sole  heir  of  the  testator.  He 
took  it  by  descent,  as  if  undisposed  of  by  the  will.  He  died  in  the 
life  time  of  William.  The  fee  then  descended  to  all  the  children  of 
Andrew,  James,  the  eldest,  taking  two  shares,  as  our  intestate  laws 
then  stood.  The  particular  estates  and  the  reversion  remained  se- 
parated, until  the  death  of  William :  they  then,  for  the  first  time, 
united  in  the  person  of  James.  He  was  the  tenant  for  life,  with 
contingent  remainder  to  his  eldest,  and  all  his  sons  in  succession,  and 
the  sons  in  tail  male,  remainder  to  Andrew  for  life,  with  contingent 
remainder  to  the  sons  of  Andrew,  in  like  manner,  with  remainder  to 
James  in  tail  general,  and  remainder  in  fee  to  him,  by  descent  from 
his  father.  If  the  whole  estate  had  descended  to  him  in  fee,  as  sole 
heir,  as  it  would  at  the  common  law,  there  could  be  no  question, 
by  this  consolidation  of  estate,  but  that  the  estate  for  life  in  James 
was  merged  by  the  estate  of  inheritance  upon  him,  and  this  is 
Kent  v.  Hartpool.  T.  Jones,  76,  1  Vent.  306,  and  Hooke  v.  Hoohe. 
Hardw.  Cas.  13.  In  the  last  case  lands  were  conveyed  to  the 
use  of  A.  and  his  wife,  remainder  to  the  use  of  B.,  son  of  A.  for 
life,  remainder  to  the  first  and  other  sons  of  A.  in  tail,  remainder 
to  his  daughter  in  tail,  remainder  to  A.  in  fee.  A.  and  his  wife  died, 
in  the  life  time  of  B.,  who  afterwards  died  without  issue.  The 
question  was,  whether  the  wife  of  B.  was  entitled  to  dower  in  the 
lands,  and  it  was  decided,  that  she  was;  because  the  estate  for  life 
of  B.  was  merged  by  the  descent  of  the  inheritance  upon  him,  and 
the  contingent  remainders  destroyed.  Here  if  James  had  died  after 
the  death  of  Andrew  and  William,  his  wife  would  have  been  dowa- 


376  SUPREME  COURT  [Philadelphia, 

(Lyle  and  others  v.  Richards.) 

ble ;  and  Mr.  Fearne,  (Fearne,  342,  34.)  shows  the  reason.  To 
be  sure,  it  would  be  incompatible  with  reason,  that  if  James  had 
taken  the  life  estate  and  the  fee  simple  both  from  the  testator, 
that  they  should  immediately  merge  the  particular  estate;  that  it 
should  be  destroyed  at  the  same  moment,  and  by  the  same  instru- 
ment which  created  it.  In  that  case,  the  will  would  be  ipso  facto 
void.  But  where  the  accession  of  the  inheritance  is  by  a  convey- 
ance, accident,  or  circumstance,  distinct  from  that  which  created 
the  particular  estate,  as  there,  there  could  be  no  such  suicidal  con- 
junction :  for  both  estates  took  effect,  the  particular  estate,  and  the 
general  fee,  and  having  the  capacity  to  take  effect,  they  are  not  af- 
terwards exempt  from  the  operation  of  merger  by  descent.  But 
the  difficulty  arises  from  James  not  taking  the  whole  estate  from 
his  father,  and  this  is  not  a  consolidation  of  the  entire  estate,  and, 
therefore,  only  a  partial  merger.  I  own  it  is  a  new  question,  not 
now  necessarily  calling  for  decision,  yet  as  I  am  at  present  impress- 
ed, it  does  appear  to  me  to  produce  the  effect  of  a  general  merger. 
The  doctrine  is,  that  an  alteration  of  the  quantity,  though  not  of 
the  quality  of  the  particular  estate  destroys  it.  It  is  not  the  identi- 
cal thing,  the  same  crutch  for  the  contingent  remainder  to  lean  upon. 
It  cannot  be  lopped,  or  split  into  parts,  and  still  bear  the  weight 
of  the  whole  contingent  estates.  For  it  was  necessary,  that  there 
must  be  a  reversion  of  the  entire  estate,  to  produce  a  merger.  It 
would  follow,  that  if  tenant  for  life  conveyed  by  feoffment  all  but 
one  inch  of  the  particular  estate,  that  inch  would  support  the  whole 
remainders.  It  is  a  curious  speculation.  Fearne,  338,  states  the 
broad  proposition,  that  any  alteration  in  the  quantity  of  the  par- 
ticular estate  will  destroy  the  whole  contingent  remainder,  though 
an  alteration  of  the  quality  would  not.  But  the  recovery  by  James 
renders  this  all  mere  speculation.  For  by  that  he  acquired  the  fee 
simple  in  the  whole.  There  was  then  no  continuing  life  estate  in 
esse  to  support  these  remainders.  They  were  in  nubibus,  and 
never  could  be  called  into  existence,  when  the  event  took  place 
which  would  give  them  life.  No  matter  how  this  was  produced, 
whether  by  forfeiture,  estoppel,  consolidation,  or  merger.  And  it 
is  fully  clear  to  me,  that  even  a  conveyance  by  bargain  and  sale, 
if  there  had  been  no  common  recovery,  in  which  James  and  An- 
drew united,  as  here  they  did,  would  vest  the  fee  simple  in  the  pur- 
chaser. As  if  A.  tenant  for  life,  remainder  to  his  sons  successively, 
in  tail  male,  remainder  to  B.  in  fee,  and  if,  before  the  birth  of  a  son, 
A.  convey  to  B.,  or  A.  and  B.  join  in  a  conveyance  to  C.  by  bar- 
gain and  sale,  lease  and  release,  the  contingent  remainders  to  the 
sons  are  destroyed.  So  where  the  estate  is  limited  to  A.  for  life, 
either  in  possession  or  remainder,  with  remainder  to  his  sons  in 
tail,  with  remainder  and  reversion  to  A.  in  fee  ;  if  before  the  birth 
of  a  son,  A.  executes  a  conveyance  by  lease  and  release,  or  bargain 
and  sale  enrolled,  his  estate  for  life,  and  remainder  and  reversion  in 
fee  Lecome   united,  and   the  remainders  to  the   sons  destroyed. 


Warch,  1823.]  OF  PENNSYLVANIA:  3T7 

(Lyle  and  others  v.  Richards.) 

Fearne,  321.  The  distinction  is,  where  the  descent  of  the  inheri- 
tance is  immediate  from  the  testator;  there  it  does  not  merge  the 
particular  estate.  But  where  it  does  not  descend  immediately  from 
the  ancestor  who  granted  the  particular  estate,  but  mediately,  the 
contingent  remainders  are  destroyed.  Fearne,  341.  Here  James 
took  the  life  estate  from  the  testator,  but  the  general  estate,  the  fee, 
descended  to  him  from  his  own  ancestor,  Andrew  the  first.  There 
are  many  other  questions  arising  from  this  will,  the  recovery  and 
subsequent  acts  of  James  and  Andrew  and  other  events  in  the  family, 
which  present  themselves.  But  the  transaction  is  so  fruitful  of 
curious  questions,  that  it  is  time  to  stop,  as  I  am  of  opinion,  for  the 
reasons  I  have  stated,  that  Samuel  Richards,  the  defendant,  has  a 
good  title  in  fee,  conveyed  to  him  of  the  premises,  out  of  which  this 
ground  rent  is  to  issue  ;  and,  therefore,  that  judgment  should  be  en- 
tered for  the  plaintiff. 

Judgment  affirmed. 


END  OF  MARCH  TERM,  1823. 


VOL. IX.  3  B 


CASES 


IN  THE 


SUPREME  COURT  OE  PENNSYLVANIA. 

LANCASTER  DISTRICT— MAY  TERM,  1823. 


i 


[Lancaster,  May  19,  1823.] 

HENDERSON  against  LEWIS,  surviving  Executor  of  GODFREY, 

to  the  use  of  JONES. 

IN  ERROR. 

Where  payment  is  pleaded,  and  issue  joined  thereon,  the  short  entry  of  set  off  added 
thereto,  is  only  a  notice,  and  not  strictly  a  plea,  and  therefore,  requires  no  re- 
plication. 

One  of  two  joint  obligors,  not  summoned,  is  not  a  witness  for  the  other  who  is  sum- 
moned, to  prove  under  notice  of  set  off,  a  debt  due  from  the  plaintiff  to  the  witness, 
though  the  witness  is  released  by  the  defendant. 

A  debt  due  from  the  plaintiff  to  the  co-obligor  not  summoned,  is  not  a  set  off  against 
the  plaintiff's  demand  on  the  obligor  who  is  summoned. 

The  separate  debt  due  by  the  plaintiff  to  one  co-obligor,  cannot  be  set  off  against  a 
joint  demand  against  both. 

The  lapse  of  less  than  20  years  may,  with  other  circumstances,  afford  a  presumption 
of  payment  of  a  bond,  but  without  circumstances,  it  must  be  at  least  20  years  to 
raise  the  presumption. 

Error  to  the  Common  Pleas  of  Lancaster  county. 

Debt  on  bond,  brought  to  January  term,  1818,  by  William  Lewis, 
surviving  executor  of  John  Godfrey,  deceased,  to  the  use  of  Daniel 
C.  Jones,  against  George  Henderson  and  Thomas  Henderson.  The 
sheriff' returned  served  on  Thomas  Henderson  and  he  alone  appear- 
ed. The  plaintiff  filed  a  statement  against  Thomas  Henderscm  alone, 
(mentioning  a  return  by  the  sheriff  of  not  summoned  as  to  George 
Henderson,)  claiming  the  principal  and  interest  due  upon  a  bond 
executed  by  the  said  George  and  Thomas  Henderson,  dated  the  4th 
September,  1798,  in  the  penal  sum  of  .£300,  conditioned  for  the  pay- 
ment of  .£150  to  the  said  John  Godfrey  on  the  4th  September, 
1799,  with  interest  from  the  date.  This  statement  admitted  that 
the  obligors  had  paid  one  year's  interest,  and  also,  £6  18s.  on  the 


380  SUPREME  COURT  [Lancaster, 

(Henderson  v.  Lewi.*,  surviving  Executor  of  Godfrey,  to  the  use  of  Jones.) 

8th  April,  1802.  The  defendant  7*.  Henderson,  pleaded  payment 
with  leave,  on  which  issue  was  joined.  At  a  subsequent  day,  the 
defendant  added  the  plea  of  set  off,  by  a  short  entry  on  the  docket, 
to  which  the  plaintiff  never  replied.  Oti  the  trial,  after  the  bond 
had  been  read,  the  defendant  offered  in  evidence  the  deposition  of 
George  Henderson,  one  of  the  obligors,  made  the  2d  September, 
1820,  to  prove  that  in  the  year  1807  and  1808,  the  plaintiff,  Daniel 
C.  Jones,  received  from  him  in  boarding,  articles  furnished,  and 
cash  paid  on  his  account,  to  the  value  of  upwards  of  200  dollars, 
which  he,  the  said  G.  Henderson,  considered  at  the  time,  as  so  much 
paid  on  account  of  the  bond.  Accompanying  this  deposition,  the 
defendant  produced  a  release,  under  seal  from  him  to  the  said  G. 
Henderson,  dated  the  2d  September,  1820,  but  admitted  to  have  been 
executed  and  delivered  before  the  deposition  was  taken.  By  this 
instrument  the  defendant  released  G.  Henderson  from  all  respon- 
sibility to  him  in  case  he  should  be  unsuccessful  in  this  suit,  and 
from  paying  him  any  thing  in  any  event :  and  covenanted  to  pay  the 
whole  sum,  if  any,  which  might  be  recovered  against  him  in  this 
suit,  without  any  recourse  to  the  said  G.  Henderson.  The  plain- 
tiff objected  to  the  deposition,  and  the  court  below  rejected  it. 
The  defendant  thereupon,  tendered  a  bill  of  exceptions. 

The  court  charged  in  the  following  terms  : 

It  is  contended  on  behalf  of  the  defendant,  that  this  bond  is  to 
be  presumed  to  be  paid  from  the  lapse  of  time  which  has  taken 
place  from  the  period  it  became  due,  without  being  demanded. 
But  the  law  requires  that  20  years  should  elapse  from  the  time  the 
bond  become  due,  before  the  presumption  can  arise  from  the  lapse 
of  time  alone.  This  bond  was  not  due  until  the  4th  September, 
1799,  which  constituted  a  period  of  18  years  and  3  months.  Even 
if  20  years  had  elapsed  from  the  time  the  bond  became  due,  until 
it  was  sued,  the  presumption  may  be  repelled  by  other  circumstances, 
such  as  the  payment  of  interest  within  the  20  years,  or  payment  on 
any  other  account  within  that  time.  Whether  the  payments  credit- 
ed in  this  case  were  made  within  that  time,  it  would  be  necessary 
for  you  to  decide,  if  20  years  had  elapsed  between  the  period  at 
which  the  bond  became  due,  and  that  at  which  it  was  sued  :  but  as 
that  is  not  the  case,  the  plaintiff  is  entitled  to  recover  the  balance 
due  on  it,  with  interest. 

The  defendant  excepted  to  this  charge,  and  the  jury  gave  a  ver- 
dict for  the  plaintiff. 

The  errors  now  assigned  were,  first,  that  there  was  no  issue  on 
the  plea  of  set  off.  Second  that  the  deposition  of  G.  Henderson 
was  not  admitted.     Third?,  that  the  court  erred  in  their  charge. 

Buchanan  for  the  plaintiff  in  error  contended, 

1st.  That  the  plea  of  set  off' was  not  replied  to,  and  no  issue  was 
joined  upon  it.  A  set  off"  cannot  be  given  in  evidence  on  the  plea 
of  payment  with  leave.     2d.  That  G.  Henderson  was  a  competent 


May,  1823.]  OF  PENNSYLVANIA.  381 

(Henderson  v.  Lewis,  surviving  Extculor  of  Godfrey,  to  tlie  use  of  Jones.) 

witness.  The  only  objection  that  could  be  suggested  was,  that  he 
was  a  party  on  the  record :  but  that  is  not  sufficient,  if  such  party 
be  wholly  divested  of  interest,  as  the  witness  here  was.  In  Hick- 
ert  v.  Haine,  a  defendant,  one  of  the  "administrators  of  Hickert, 
was  offered  as  a  witness,  after  having  released,  and  an  offer  made 
to  pay  the  costs:  but  the  court  rejected  him  on  the  ground,  that  a 
mere  offer  to  pay  the  costs  was  not  sufficient,  and  that  he  was  still 
interested,  because  the  verdict  might  implicate  him.  It  was  not 
suggested  by  the  court,  that  if  he  had  been  wholly  disinterested, 
he  might  not  have  been  a  witness.  G.  Henderson,  however,  was 
free  from  all  interest;  because  not  being  then  a  party  to  the  suit,  he 
could  not  be  affected  by  the  verdict,  if  in  favour  of  the  plaintiff. 
Nor  would  he  be  liable  in  another  suit,  because  the  action  was  origi- 
nally joint,  and  the  judgment  must  be  against  one,  by  which  the 
cause  of  action  would  become  extinguished.  Williams  v.  M'-Fall, 
2  Serg.  fy  Rawle,  280.  The  reception  of  plaintiffs  as  witnesses  is 
now  familiar,  in  cases  where  they  have  no  interest  in  the  suit.  In 
Drum  v.  Simpson's  Lessee,  6  Binn.  478,  the  lessor  of  the  plaintiff* 
was  held  to  be  a  good  witness  for  the  defendant,  being  only  a  trustee. 
So  a  nominal  plaintiff  is  a  witness  for  the  party  beneficially  interested, 
on  a  sum  being  paid  sufficient  to  cover  all  the  costs.  Browne  v.  Weir, 
5  Serg.  fy  Rawle,  401.  In  Purviance  v.  Dry  den,  3  Serg.  Sf 
Rawle,  402,  the  point  now  before  the  court  was  in  effect  decided. 
There  it  was  held,  that  if  a  writ  issue  against  two,  and  only  one 
be  taken,  and  the  suit  proceed  against  him  alone,  the  other  is  not 
excluded  from  being  a  witness  on  the  ground  that  he  is  a  party  to 
the  suit.  The  practice  of  severing  the  party  not  summoned,  is  now 
become  a  well  established  course  in  this  state,  and  was  recognised 
many  years  since  in  United  States  v.  Parker,  2  Dall.  273. 

3d.  The  charge  was  erroneous  in  stating  that  there  could  be  no 
presumption  of  payment,  20  years  not  having  elapsed  between  the 
time  of  payment,  and  the  commencement  of  the  suit.  In  Rex  v. 
Stephens,  1  Burr.  434,  Lord  Mansfield  observed,  that  there  was 
no  direct  and  express  limitation  of  time  when  a  bond  should  be 
supposed  to  have  been  satisfied.  The  general  time,  indeed,  was 
commonly  taken  to  be  about  20  years:  but  he  had  known  Lord 
Raymond  leave  it  to  a  jury  upon  18  years.  In  the  Mayor  of 
Hull  v.  Horner,  Cowp.  109,  he  even  says,  that  a  jury  may  pre- 
sume a  bond  to  be  discharged,  where  no  interest  appears  to  have 
been  paid  for  16  years.  In  this  instance,  the  period  exceeded  18 
years,  and  therefore,  the  court  ought  to  have  left  it  to  the  jury  to 
draw  the  presumption  of  payment  if  they  thought  proper. 

Hopkins,  contra,  made  no  observations  on  the  first  point,  as  it 
was  in  a  great  measure  relinquished. 

1st.  This  point  is  a  novelty:  one  of  the  joint  obligors  is  called  as 
a  witness  to  extinguish  the  obligation.  He  was  released  by  the 
defendant,  but  that  could  not  make  him  a  witness  for  himself.  It  is  a 
dangerous  principle  which  is  now  set  up:  because  joint  obligors 


382 


SUPREME  COURT 


[Lancaster, 


(Henderson  v.  Lewis,  surviving  Executor  of  Godfrey,  to  the  use  of  Jones\) 

will  have  only  to  separate,  so  as  to  live  in  different  counties,  and 
then  one  may  be  a  witness  for  the  other.  It  is  not  the  fault  of  the 
obligee,  that  one  of  the  obligors  could  not  be  taken  in  the  county  in 
which  he  was  sued.  Nor  is  the  debt  extinguished  by  judgment :  there 
must  be  satisfaction,  otherwise  G.  Henderson  remains  liable,  where- 
ever  he  may  be  found.  He  cited  Bantleon  v.  Smith,  2  Binn.  146. 
Chapman  v.  Martin,  13  Johns.  200. 

2d.  There  were  18  years  and  3  months,  between  the  time  of 
payment  of  the  bond  and  the  institution  of  this  action,  besides 
which,  one  year's  interest  had  been  paid.  It  is  well  settled  in 
Pennsylvania,  that  where  time  alone  is  the  circumstance  relied  on, 
not  less  than  20  years  will  raise  the  presumption  of  payment.  The 
cases  cited  from  1  Burr.  434,  and  Cowp.  109,  are  not  to  the  pur- 
pose, for  in  them  there  were  other  circumstances  besides  the  length 
of  time. 

Buchanan,  in  reply. 

1st.  Was  G.  Henderson  interested?  Could  the  plaintiff  sustain 
an  action  against  him  after  this  suit  ?  I  contend  that  he  could  not. 
By  bringing  a  joint  suit  he  has  precluded  himself  from  so  doing: 
by  a  judgment  against  one  in  a  joint  suit,  on  a  joint  and  several 
bond,  the  bond  is  extinguished;  there  is  no  instance  in  this  state  of 
a  suit  against  one  joint  obligor  after  a  judgment  in  an  action  brought 
jointly  against  the  other  obligor. 

2.  The  charge  of  the  court  was  wrong.  It  was  peremptory  to 
find  for  the  plaintiff  without  leaving  it  to  the  jury  to  judge  from  cir- 
cumstances. The  court  had  no  right  to  take  the  case  from  the 
JUIT- 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  By  the  English  statutes,  where  either  the  debt  for  which 
the  action  is  brought,  or  that  proposed  to  be  defalked,  has  accrued  by 
reason  of  a  specialty,  the  set  off  must  be  pleaded  in  bar:  in  all 
other  cases  it  may  be  either  pleaded  or  given  in  evidence  on  the 
general  issue.  By  our  act  of  assembly,  the  defendant  may,  in  all 
cases,  either  plead  it  specially,  or  give  it  in  evidence  on  notice  un- 
der the  plea  of  payment,  at  his  election  ;  and  where  payment  is  in 
fact  pleaded,  the  additional  short  entry  of  "  set  off,"  is  not  consi- 
dered as  a  plea,  but  a  minute  or  memorandum  that  a  set  off  is  in- 
tended to  be  relied  on.  A  formal  plea  would  require  a  replication ; 
but  nothing  appears  here  beyond  the  customary  short  entry,  and  the 
cause,  having  been  put  at  issue  on  the  plea  of  payment,  the  record 
is  in  this  respect  well  enough. 

The  deposition  of  George  Henderson  was  properly  excluded. 
The  bill  of  exceptions  presents  the  case  of  a  joint  obligor,  against 
whom  the  writ  was  issued,  but  who  not  summoned,  being  pro- 
duced to  prove  a  debt  against  the  plaintiff  separately  due  to  himself; 
and  although  he  might  not  be  incompetent  to  testify  to  any  fact  in 
the  cause  merely  on  the  ground  of  having  originally  been  joined  as 


May,  1823.]  OF  PENNSYLVANIA.  383 

(Henderson  v.  Lewis,  surviving  Executor  of  Godfrey,  to  the  use  of  Jones.) 

a  party,  he  might  be  incompetent  on  the  ground  of  a  particular  in- 
terest. From  liability  to  the  plaintiff,  he  was  discharged  by  the 
action,  which  was  originally  joint,  being  prosecuted  separately 
against  his  co-obligor ;  and  from  liability  to  the  defendant  to  con- 
tribution for  the  debt  and  costs  that  might  be  recovered,  which 
would  otherwise  be  sufficient  to  exclude  him,  {Riddle  v.  Moss,  7  Cra. 
206,)  he  was  discharged  by  the  defendant's  release :  but  he  as 
clearly  interested  in  the  demand  proposed  ,'o  be  defalked. 

In  permitting  cross  demands  to  be  set  off  against  each  other,  the 
object  is  to  prevent  circuity  of  action ;  and  a  successful  attempt  to  set 
off  a  debt,  must  therefore  necessarily  be  equivalent  to  the  recovery 
of  it  by  a  separate  action.     Here,  had  the  demand  of  the  witness 
been  successfully  used  as  a  defence,  he  would  have  been  entitled  to 
the  benefit  of  it,  between  himself  and  his  co-obligor,  and  to  permit 
him  to  sustain  his  own  demand  by  his  own  evidence,  would  be  to 
allow  him  to  appear  as  a  witness  in  his  own  cause.     The  release 
by  Thomas  Henderson,  the  co-obligor  and  defendant  in  the  cause, 
of  all  responsibility  on  the  part  of  the  witness,  as  well  as  his  cove- 
nant to  pay  whatever  might  be  recovered,  without  recourse  to  the 
witness,  did  not  remove  this  interest :  nothing  but  the  release  of  the 
witness  himself  could  do  that.     But  independent  of  personal  objec- 
tion to  the  witness ;  the  debt  itself  was  not  the  subject  of  defalcation ; 
because  not  being  due  to  the  defendant  but  to  the  witness,  who  was 
not  a  party,  it  wanted  the  ingredient  of  mutuality.     The  object  in 
permitting  debts  to  be  set  off,  being,  as  I  have  said,  to  prevent  cir- 
cuity of  actions,  it  of  course  can  be  allowed  only  where  the  parties 
have  a  mutual  right  to  sue  each  other.     But  here  there  was,  as 
respects  the  debt  attempted  to  be  set  off,  nothing  like  privity  between 
the  plaintiff  and  the  defendant.     Where  a  bond  is  sued  jointly  and 
one  of  the  obligors  is  not  summoned  or  taken,  they  who  appear 
shall  be  charged  with  the  whole.     Here  the  person  to  whom  the 
debt  was  alleged  to  be  due,  was  not  a  party  to  the  suit,  and  was 
offered  as  a  witness  avowedly  on  that  ground.     How  then  could 
he  urge  a  defalcation  of  his  debt  in  a  cause  in  which  he  was  not 
defendant  ?     Or  how  could  his  co-obligor  who  was  a  defendant, 
and  the  defendant  exclusively  liable,  urge  it,  when  the  debt  was  not 
demanded  by  him  !     In  this  respect  the  case  is  perfectly  analogous 
to  that  of  Cramond  v.  Bank  of  the  United  States,  1.  Binn.  64,  in 
which  the  set  off  was  not  allowed.     But  if  both  obligors  had  ap- 
peared, this  separate  debt  of  one  of  them,  could  not  according  to 
the  English  statutes  have  been  set  off  against  the  plaintiff's  joint 
demand  ;  and  I  am  not  aware  of  any  thing  in  our  act  of  assembly 
to  create  a  difference.     The  case  of  a  set  off  by  a  surviving  part- 
ner, of  a  partnership  debt  against  his  own  separate  debt,  depends  on 
the  circumstance  that  the  right  to  sue  for  the  partnership  debts  sur- 
vives to  him ;  and  as  he  may  sue  for  them  as  his  own,  he  may  set 
them  off  as  his  own. 

Then  as  to  the  error  assigned  in  the  direction  of  the  court.    Be- 
tween the  time  when  the  bond  became  due,  and  the  time  when  if  was 


3W 


SUPREME   COURT 


[Lanctistcr, 


(Henderson  v.  Lewis,  surviving  Executor  of  Godfrey,  lo  the  use  of  Jones.) 

put  in  suit,  there  was  an  interval  of  eighteen  years  and  three  months ; 
during  which  there  appears  to  have  been  endorsed  on  the  instru- 
ment a  credit  of  a  year's  interest,  and  a  small  part  of  the  principal. 
The  rule  with  respect  to  the  presumption  to  be  drawn  from  lapse 
of  time,  is  derived  by  analogy  from  the  English  statute  of  limita- 
tions concerning  writs  of  entry  into  land,  and  the  statute  of  limita- 
tions concerning  writs  of  error ;  and  it  is  adopted  both  by  courts  of 
law  and  by  courts  of  equity :  by  the  former  not  only  in  the  case  of 
a  stale  claim  on  a  bond,  but  in  the  case  of  the  peaceable  possession 
of  a  franchise,  or  incorporeal  right ;  and  by  the  latter  in  the  case  of 
a  bill  by  a  mortgagor  to  redeem,  and  in  the  case  of  a  bill  of  review. 
Our  act  of  assembly  restrains  the  commencement  of  actions  for  re- 
covering the  possession  of  lands  to  twenty-one  years  from  the  time 
the  right  of  entry  first  accrued  ;  but  the  rule,  as  styled  in  analogy  to 
the  English  statute,  the  limitation  in  which  is  only  twenty  years, 
was  adopted  here  before  our  act  was  passed  ;  and  it  was  not  after- 
wards worth  while  to  alter  it  merely  for  the  sake  of  preserving  the 
analogy.  But  the  rule  is  in  the  nature  of  a  statute  of  limitation,  fur- 
nishing, not  indeed  a  legal  bar,  but  a  presumption  of  facts,  and  al- 
though less  than  conclusive,  yet  prima  facia  evidence  of  it,  and 
therefore  sufficient  of  itself,  to  cast  the  burden  of  countervailing  evi- 
dence on  the  opposite  party.  When  less  than  twenty  years  has  in- 
tervened, no  legal  presumption  arises  ;  and  the  case  not  being  with- 
in the  rule,  is  determined  on  all  circumstances  ;  among  which,  the 
actual  lapse  of  time,  as  it  is  of  a  greater  or  less  extent,  will  have  a 
greater  or  less  operation.  All  this  is  so  clearly  stated  by  Lord 
Mansfield,  in  the  Winchelsea  causes,  4  Burr.  1962,  as  to  leave  no 
doubt  of  the  origin  and  nature  of  the  rule.  In  the  case  of  a  debt 
accruing  by  reason  of  a  specialty,  it  was  necessary  for  the  sake  of 
convenience  and  repose  to  establish  some  certain  period  after  which 
payment  should  be  presumed  from  lapse  of  time  alone  :  and  that 
period  was,  in  analogy  fo  the  statute  of  limitation,  fixed  at  twenty 
years.  But  it  is  to  be  observed,  there  is  an  obvious  distinction  be- 
tween length  of  time  sufficient,  of  itself,  to  raise  a  legal  presump- 
tion of  the  kind  which  I  have  mentioned,  and  length  of  time  which, 
although  insufficient  for  that  purpose  may  nevertheless,  in  connex- 
ion with  other  circumstances,  fairly  enter  into  the  estimate  of  the 
proof  to  be  derived  from  the  whole  evidence.  The  rule  is  appli- 
cable only  to  the  first,  because  no  legal  presumption  of  the  fact  can 
be  obtained  from  the  second,  and  stabitur  presumptioni,  donee 
probetur  in  contrarium  cannot  be  predicated  of  it :  it  is  a  matter 
exclusively  for  the  consideration  of  the  jury.  A  want  of  attention 
to  this,  has,  I  apprehend,  given  rise  to  the  loose  dicta  of  Lord  Mans- 
field, and  other  judges  of  the  length  of  time  necessary  to  found  a 
presumption  of  payment,  being  about  20  years,  and  of  cases  having 
been  left  to  the  jury  where  it  was  but  eighteen.  To  deprive  the 
rule  of  fixed  limits  would,  besides  rendering  its  application  in  most 
cases,  difficult  and  uncertain,  change  its  very  nature,  and  destroy 
all  analogy  to  the  statutes  of  limitations  from  which  it  was  derived. 


May,  1823.]  OF  PENNSYLVANIA.  385 

( Henderson  v.  Lewis,  surviving  Executor  of  Godfrey,  to  the  use  of  Jones.) 

If  eighteen  years  be  left  to  the  jury  as  sufficient  in  one  case,  why 
may  not  seventeen,  or  any  less  number,  be  left  to  them  as  sufficient 
in  another  ?  But  the  presumption  is  not  subject  to  the  discretion  of 
the  jury  :  they  are  bound,  where  it  operates  at  all,  to  adopt  it  as  sa- 
tisfactory proof  till  the  contrary  be  made  out;  and  hence  when  we 
hear  of  less  than  twenty  years  being-  left  to  the  jury,  it  must  be  un- 
derstood to  have  been  in  connexion  with  other  circumstances,  and  not 
as  making  ouf/the  defendant's  case  in  the  first  instance,  but  as  going  for 
just  as  much  as  the  jury  might  under  all  the  circumstances,  estimate 
it  to  be  worth.  In  the  case  before  us  there  was  not  a  lapse  of  time 
sufficient  to  authorize  a  presumption  of  payment,  and  as  there  was 
nothing  in  aid  of  the  time  which  actually  elapsed,  I  am  of  opinion 
the  cause  was  properly  put  to  the  jury. 

Judgment  affirmed. 


{Lancaster,  May  19,  1823.] 

WEIDNER  against  SCHWEIGART. 

IN  ERROR. 

The  possession  by  the  defendant  of  an  order  on  him,  signed  by  the  plaintiff,  to  pay 
money  to  a  third  person,  whose  receipt  is  indorsed  but  not  proved,  if  not  objected 
to  as  evidence  to  go  to  the  jury,  may  be  charged  by  the  court  to  be  evidence  of 
payment,  though  not  conclusive. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county. 

Assumpsit  in  the  court  below  by  John  JVeidner,  the  plaintiff, 
against  John  Schweigart.  On  the  trial,  the  plaintiff  proved  a  set- 
tlement between  the  defendant  and  himself  in  April,  1813,  in  which 
the  defendant  acknowledged  himself  indebted  to  the  plaintiff  in  the 
sum  of  131  pounds,  12  shillings,  and  4  pence.  The  defendant  al- 
leged payment  since  that  time,  and  gave  in  evidence,  two  orders  in 
his  possession,  drawn  on  him  by  the  plaintiff:  The  first  dated  the 
9th  March,  1814,  in  favour  of  John  Carkey,  for  100  pounds,  with 
receipt  indorsed,  dated  the  16th  March,  1814,  and  signed  by  John 
Carkey.  The  other  dated  the  6th  April,  1814,  with  a  receipt  in- 
dorsed as  follows : 

Mr.  John  Schweigart,  please  to  send  by  the  bearer  the  remain- 
der of  the  money  due  me  : — £  31   12  4 
Interest  of  the  whole,  7  00  0 


April  6th,  1814. 


38  12  4 

Peter  JVeidner. 


Indorsed — Received,  April,   1814,  from  John    Schioeigart,  the 

3  C 


VOL.  IX. 


386  SUPREME  COURT  [Lancaster, 

(Weidner  v.  Shiveigart.) 

sum  of  38  pounds,  12  shillings,  and  4  pence  ;  being  in  full  satisfac- 
tion of  the  within  order  : 

£  38   12  4  his 

Samuel— 1|—  Eidel. 
mark. 

The  drawing-  of  the  said  orders  -was  admitted  by  the  plaintiff,  and 
also  that  John  Carkey  signed  the  receipt  indorsed  on  the  first  order, 
and  paid  him  the  100  pounds.  No  other  evidence  was  given,  and 
the  defendant  requested  the  court  to  charge  the  jury,  that  the  pos- 
session by  the  defendant  of  the  order  of  the  6th  April,  IB  14,  was 
prima  facie  evidence  of  the  payment  of  the  same  ;  and,  in  this  case, 
lias  become  conclusive,  no  evidence  being  given  to  the  contrary. 
The  president  in  the  court  below  charged  in  the  following  terms  : 
"  The  court  cannot  go  so  far  as  to  say  that  it  is  conclusive,  but  we 
think  it  is  evidence  to  go  to  the  jury,  upon  which  they  will  judge, 
whether,  connected  with  the  other  circumstances  of  the  case,  it  is 
sufficient  to  authorize  a  presumption  of  payment.  But  it  appears  to 
me,  that  the  indorsement  of  a  receipt  which  has  not  been  proved,  goes 
a  great  way  towards  removing  the  presumption  which  might  other- 
wise arise.  If  you  think  there  is  sufficient  evidence  of  the  payment 
of  the  money,  you  will  find  for  the  defendant ;  otherwise,  you  will 
find  for  the  plaintiff  for  the  balance  with  interest. 

The  defendant  excepted  to  this  charge  :  as  did  also  the  plaintiff, 
."so  far  as  related  to  the  point,  upon  which  the  defendant  request- 
ed the  charge  of  the  court."  The  jury  found  a  verdict  for  the  de- 
fendant. 

Hopkins,  for  the  plaintiff  in  error,  now  contended,  that  the 
court  erred  in  saying  that  the  order  of  the  6th  April,  1814,  was 
evidence  to  go  to  the  jury,  because,  per  se,  it  was  no  evidence 
whatever  of  payment.  It  was  not  a  negotiable  order,  nor  did  it 
vest  any  property  in  the  bearer.  The  best  evidence  which  the  na- 
ture of  the  case  admitted,  was  the  oath  of  Eidel,  who  it  is  alleged, 
received  the  money  :  or,  at  least,  there  should  have  been  proof  of 
his  handwriting.  Without  these,  the  order,  was  mere  waste  paper, 
and  improper  for  the  consideration  of  the  jury  :  yet,  from  the  man- 
ner in  which  the  court  charged,  the  indorsement  went  to  the  jury 
as  evidence,  without  any  proof.  The  court  also  erred  in  leaving  it 
to  the  jury  to  say,  what  was  the  legal  effect  of  this  paper's  being 
found  in  the  defendant's  possession,  and  whether  it  was  proof  of 
payment. 

Buchanan,  contra.  The  paper  was  given  in  evidence  without 
objection  :  the  defendant  admitted  that  he  drew  the  order  :  and  it  is 
too  late  now  to  contend  that  it  was  no  evidence  at  all  of  payment. 
The  bearer  was  the  agent  of  the  plaintiff,  and  the  order's  being 
drawn  by  the  defendant,  and  being  in  the  defendant's  possession, 
were  certainly  some  evidence  of  payment.  No  prudent  man  would 
give  up  such  an  order  without  payment.  It  is  not  pretended  that 
the  order  was  negotiable  to  all  intents  and  purposes,  but  it  was  so 


May,  1823.]  OF  PENNSYLVANIA.  387 

(Weidncr  v.  Schweigarl.) 

to  a  certain  degree.  The  defendant  would  have  been  justified  in 
paving  to  any  bearer,  without  further  inquiry.  Banks  never  take 
a  receipt  for  payment  of  a  check  payable  to  bearer.  It  is  sufficient 
for  us  that  possession  was  prima  facie  evidence  of  payment.  In 
Cruger  v.  Armstrong,  3  Johns.  Cas.  5,  it  was  held,  that  the  holder 
of  a  check  is  prima  facie  to  be  deemed  the  rightful  owner  of  it, 
and  he  need  not  prove  a  consideration,  except  where  circum- 
stances of  suspicion  appear.  Possession  of  an  order  to  pay  money 
is  prima  facie  evidence  of  payment,  though  it  is  otherwise  of  an 
order  to  deliver  goods.  Taylor's  JV.  Car.  Rep.  40.  Being,  then, 
prima  facie  evidence,  it  was  incumbent  on  the  defendant  to  call 
Eidel  to  rebut  it.  At  all  events  the  objection  should  have  been 
taken  before  the  paper  was  read  in  evidence. 

Hopkins,  in  reply.  A  bank  check  is  quite  different  from  the 
present  order.  That  vests  a  property  in  the  check.  This  order 
is,  to  send  the  money  by  the  bearer,  and  vests  no  property.  We 
did  not  object  to  the  reading  of  the  order  in  evidence,  because  it 
was  the  writing  of  the  plaintiff,  and  we  expected  it  would  be  fol- 
lowed up  by  an  attempt  to  prove  the  receipt,  which  we  were  pre- 
pared to  contradict.  The  defendant  cannot  now  separate  the  order 
from  the  receipt ;  they  all  form  one  transaction,  and  one  item  of 
evidence.  The  court  took  the  receipt  into  view  in  their  charge, 
and  thus  the  jury  considered  the  receipt  as  evidence.  In  the 
conclusion  of  their  charge,  the  court  left  it  to  the  jury  whether 
there  was  sufficient  evidence  of  payment.    This  was  matter  of  law. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J. — On  the  trial  of  this  c?use,  the  plaintiff  proved 
that  the  defendant  was  indebted  to  him;  and  the  defendant,  in  or- 
der to  satisfy  the  jury  that  he  had  paid  the  debt,  gave  in  evidence 
a  note  or  order  by  the  plaintiff,  directed  to  him,  in  the  words  fol- 
lowing :  Mr.  John  Schweigart,  please  to  send  by  the  bearer,  the 
remainder  of  the  money  due  me,  <£31  125.  4d. 

Interest  of  the  whole,  7  00     0 


38  12     4 

(signed)  Peter  Weidner. 
April  6th,  1814. 

Indorsed  on  this  note,  was  a  receipt  signed  by  Samuel  Eidel, 
for  £38  12s.  4d.  in  full  satisfaction  of  the  within  order;  but  no 
evidence  was  given  of  the  signature  of  Eidel,  or  of  the  payment 
of  the  money  to  him,  nor  was  the  indorsement  read  in  evidence  to 
the  jury.  The  counsel  for  the  defendant  prayed  the  court  to  charge 
the  jury,  that  the  possession  of  this  note  was  prima  facie  evidence 
of  payment ;  and  not  having  been  contradicted,  this  evidence  be- 
comes conclusive.     The  court  charged,  that  the  possession  of  the 


388  SUPREME  COURT  [Lancaster, 

(Weidner  v.  Schwcigart.) 

note  was  evidence  of  payment,  but  not  conclusive;  and  that  the 
presumption  of  payment  arising  from  the  possession,  was  in  a  great 
degree  destroyed  by  the  indorsement  of  a  receipt  which  had  not 
been  proved.  The  jury  found  for  the  defendant,  and  the  plaintiff 
now  alleges  for  error,  that  they  were  improperly  instructed  by  the 
court,  that  the  note  produced  by  the  defendant  was  some  evidence 
of  payment.  It  is  too  late  now,  to  say  that  the  note  was  no  evi- 
dence of  payment.  If  it  was  no  evidence,  the  defendant  ought  to 
have  objected  to  its  being  given  in  evidence.  And,  considering 
that  it  had  been  given  in  evidence  without  objection,  the  charge  of 
the  court  was  very  favourable  to  the  defendant.  Indeed  the  judge 
remarked  on  the  indorsement,  as  a  circumstance  operating  strongly 
against  the  defendant ;  although  it  had  not  been  given  in  evidence. 
The  defendant's  counsel  thought  his  cause  injured  by  this  remark, 
and  excepted  to  the  charge  on  that  account.  But  the  verdict  being 
contrary  to  expectation,  the  defendant  is  now  satisfied,  and  the 
plaintiff  complains.  If  the  plaintiff 's  counsel  had  objected  to  the 
note's  being  given  in  evidence,  until  proof  was  made  of  the  in- 
dorsed receipt,  perhaps  he  would  have  been  right.  But  having 
suffered  it  to  be  read  to  the  jury,  the  least  that  the  court  could  say, 
was,  that  it  was  some  evidence  of  payment.  I  am  of  opinion,  there- 
fore, that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


[Lancaster,  May  19,  1823.] 

M'CAUSLAND'S  Administrators  against  BELL. 

IN  ERROR. 

On  affirmance  of  a  judgment  in  this  court  after  a  writ  of  error,  interest  is  to  be 
charged  on  the  judgment  below  till  affirmance,  and  then  the  aggregate  is  to  bear 
interest. 

But  the  plaintiff  cannot  in  such  case,  charge  interest  on  Ihe  costs  of  suit,  until  he 
pays  them  :  though,  on  payment,  he  may  charge  interest  from  that  time. 

This  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of  Lan- 
caster county,  and  the  case  was  submitted  to  the  court  without  ar- 
gument. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  The  plaintiff  obtained  judgment  against  the 
defendant  in  the  Court  of  Common  Pleas,  which  was  affirmed  in 
this  court  on  a  writ  of  error.  It  is  made  a  question  whether  the 
plaintiff  in  error  has  a  right  to  charge  interest  on  the  amount  of  the 
judgment  in  the  Common  Pleas,  from  its  date  until  its  affirmance  in 
this  court,  and  after  the  affirmance  to  charge  interest  on  the  sum 
which  was  the  amount  both  of  the  judgment  in  the  Common  Pleas 


May,  1823.]  OF  PENNSYLVANIA.  389 

(M'Causland's  Administrators  v.  Bell.) 

and  the  interest  on  it  till  its  affirmance  ;  in  other  words,  whether 
the  aggregate  composed  of  the  amount  of  the  judgment  in  the 
Common  Pleas  and  interest  on  it,  till  its  affirmance  in  this  court, 
was  to  be  considered  as  a  principal,  bearing  interest  from  the  date 
of  the  affirmance.  Interest  is,  in  general,  a  legal  incident  of  every 
judgment  in  this  state.  The  law  was  so  declared  in  Fitzgerald  v. 
Caldwell's  Executors,  4  Dall.  252  ;  and  in  Fries  v.  Watson,  5  Sergt. 
fy  Ramie,  220,  it  was  decided  that  where  a  judgment  has  been 
several  times  revived  by  a  scire  facias,  the  plaintiff  has  a  right 
to  charge  interest  on  the  aggregate  amount  of  principal,  and  inte- 
rest due  at  the  time  of  rendering  judgment  on  each  scire  facias ; 
upon  the  same  principle,  he  has  a  right  to  charge  interest  on  the 
aggregate  amount  of  a  judgment  in  Common  Pleas,  and  the  inte- 
rest on  it  to  the  time  of  its  affirmance  on  a  writ  of  error.  If  it'be 
said,  that  on  a  writ  of  error  the  judgment  which  was  given  below 
is  affirmed  in  this  court,  with  costs  and  nothing  more,  the  same  re- 
mark is  applicable  to  the  case  of  a  scire  facias,  where  the  judgment 
is  no  more  than  an  award  of  execution  on  the  original  judgment. 
But  as  our  act  of  assembly  gives  interest  on  every  judgment,  we 
have  held  that  whenever  a  judgment  is  given,  it  is  understood  that 
interest  on  any  former  judgment  in  the  same  action,  is  to  be 
charged;  and  this  is  doing  no  more  than  justice  to  the  plaintiff  in 
error.  He  is  sufficiently  injured  by  the  expense,  vexation,  and  de- 
lay, of  the  writ  of  error.  Indeed  it  is  to  be  regretted,  that  this 
court  has  it  not  in  its  power,  to  award  him  a  more  adequate  satis- 
faction. It  is  not  denied  that  the  judgment  in  the  Common  Pleas 
bears  interest  from  its  date.  But  the  complaint  is,  of  the  interest 
charged  on  the  aggregate  amount  from  the  time  of  the  affirmance. 
If  the  defendant  in  error  would  do  justice,  by  paying  what  is  due, 
immediately  after  the  affirmance,  he  would  avoid  any  charge  of  in- 
terest on  the  aggregate.  But  if  he  will  not  do  justice,  he  has  no 
cause  of  complaint  if  he  is  charged  with  interest  on  the  whole  sum 
which  he  ought  to  have  paid.  It  has  also  been  made  a  question 
whether  interest  is  chargeable  on  the  costs  of  suit.  The  custom 
of  Pennsylvania  is  singular  with  regard  to  costs.  With  the  excep- 
tion of  some  particular  writs,  it  has  not  been  the  practice  to  pay 
the  prothonotary's  costs,  till  the  action  is  ended.  And  when  it  is 
ended,  if  the  judgment  be  for  the  plaintiff,  it  has  been  usual  to  look 
for  the  costs  in  the  first  instance  to  the  defendant  against  whom  the 
judgment  was  rendered  ;  but  if  not  to  be  had  of  him,  resort  is  had 
to  the  plaintiff.  The  law  on  this  subject  will  be  found  in  the  case 
of  Lyon  v.  M'Manus,  4  Einn.  172.  I  think,  therefore,  that  the 
plaintiff  should  not  charge  interest  on  the  costs,  unless  he  has  paid 
them,  and  then  only  from  the  time  of  payment.  As  this  case  was 
submitted  to  the  court  without  argument,  I  know  not  whether  it  is 
the  desire  of  the  parties  that  a  formal  judgment  should  be  given. 
If  it  be,  it  will  be  entered  according  to  the  principle  I  have  men- 
tioned. 


390  SUPREME  COURT  [Lancaster,. 


[Lancaster,  May  19,  1823.] 

WHEELER  and  another  against  HAM  BRIGHT. 

IN  ERROR. 

The  sheriff  is  liable  for  an  escape,  where  he  has  returned  non  est  inventus  to  a  ca- 
pias ad  satisfaciendum,  which  had  been  delivered  to  him,  if,  prior  to  the  return  day, 
his  deputy  had  the  defendant  in  custody  under  another  capias  ad  satisfaciendum, 
and  discharged  him ;  though  it  do  not  appear  that  the  sheriff  knew  of  the  latter 
writ,  or  that  the  deputy  knew  of  the  former. 

The  declarations  of  the  deputy  sheriff  respecting  the  execution  of  a  Writ,- made  after 
the  return  day,  but  while  the  writ  is  in  his  hands,  are  evidence  against  the  sheriff. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county. 

John  S.  Wheeler  and  Courtland  B.  Howell,  merchants,  trading 
under  the  firm  of  Wheeler  Sf  Howell,  plaintiffs  below,  brought  this 
action  of  debt  against  George  Hambright,  Esq.,  late  sheriff  of 
Lancaster  county,  for  suffering  a  certain  James  Wright,  Jr.,  to 
escape  from  his  custody  after  being  arrested  in  execution.  The 
facts  of  the  case,  as  they  appeared  on  the  trial,  were,  that  the  plain- 
tiffs having  obtained  judgment  against  James  Wright,  Jr.,  issued 
a  capias  ad  satisfaciendum  against  him  on  the  8th  February, 
1817,  returnable  to  April  term,  1817,  which  was  immediately  af- 
terwards put  into  the  hands  of  the  defendant,  then  sheriff,  and  was 
subsequently  returned  non  est  inventus.  A  judgment  having  also 
been  obtained  against  the  same  James  Wright,  Jr.,  by  William 
Hassan,  a  capias  ad  satisfaciendum  was  issued  thereon,  on  the 
4th  March,  1817,  returnable  to  April  term,  1817.  Wright  was 
arrested  on  this  last  writ,  by  Mathias  Musser,  who  had  been  re- 
gularly appointed  by  the  defendant  one  of  his  under  sheriffs,  with 
power  to  execute  all  such  writs,  as  he,  or  any  other  for  him,  might 
put  into  his  hands,  and  perform  all  lawful  acts  and  things  apper- 
taining to  the  said  office  of  under  sheriff.  After  this  arrest,  an  ar- 
rangement took  place  between  the  friends  of  Wright  and  Hassan, 
and  Wright  was  suffered  to  go  at  large,  having  been  in  custody  for 
a  period  of  from  a  half  to  three  quarters  of  an  hour. 

On  the  trial  the  plaintiff  offered  in  evidence  the  deposition  of 
Henry  Shippen,  who  had  been  the  plaintiff's  attorney  in  the  suit 
against  Wright,  and  had  delivered  the  capias  ad  satisfaciendum 
to  the  defendant,  stating,  among  other  things,  "  that  some  time 
after  the  April  court  of  1817,  Mathias  Musser,  the  deputy  sheriff, 
called  on  him,  and  asked  him  to  issue  an  alias  capias  in  the  same 
suit,  which  he  refused  to  do  :  and  in  a  conversation  between  him 
and  Musser,  respecting  the  executing  of  said  writ,  that  Musser 
told  him,  that  he  had  arrested  the  said  James  Wright,  Jr.,  on  a  ca- 
pias at  the  suit  of  one  Hassan,  and  that  after  obtaining  security 
for  the  debt  to  the  satisfaction  of  said  Hassan,  he  had  permitted 
Wright  to  go  at  large,  and,   at  the  same  time   alleged  as  his  ex- 


May,  1823.]  OF  PENNSYLVANIA.  391 

(Wheeler  and  another  v.  Hambright.) 

cuse  for  so  doing,  that  he  had  not  at  that  time  with  him,  the  writ 
of  Wheeler  8?  Howell.  The  deponent  could  not  recollect  at  what 
time,  precisely,  the  said  conversation  with  Musser  took  place ;  but 
he  firmly  believed  it  was  after  the  return  day  of  the  writ,  and  pre- 
vious to  the  writ  being  actually  returned  by  the  sheriff'."  The  de- 
fendant objected  to  this  part  of  the  deposition,  and  the  court  struck 
it  out.     The  plantiffs  tendered  a  bill  of  exceptions. 

The  court  below  charged  the  jury,  that  to  render  the  sheriff  lia- 
ble, it  was  absolutely  necessary  that  the  second  writ  should  be  de- 
livered to  him,  or  lodged  in  his  office,  or  that  he  should  be  acquant- 
ed  with  the  fact  that  it  was  delivered  to  his  officer,  or  that  Wright 
was  in  custody  before  he  was  set  at  large :  otherwise,  unless  the 
officer  had  the  first  writ  with  him  at  the  time,  the  sheriff  was  not  re- 
sponsible. 

The  plaintiff  excepted  to  the  charge  of  the  court,  and  the  jury 
found  a  verdict  for  the  defendant. 

Fuller  for  the  plaintiffs  in  error,  now  contended,  that  the  court  be- 
low had  erred  in  their  charge  to  the  jury,  and  in  rejecting  the  above- 
mentioned  part  of  Mr.  Shippers  deposition. 

1st.  The  principle  was  held  in  Frost's  Case,  5  Co.  89,  that  if  A. 
is  arrested,  and  in  the  actual  custody  of  the  sheriff,  and  afterwards 
another  writ  is  delivered  to  him  at  the  suit  of  J.  S.,  upon  the  de- 
livery of  the  writ,  A.  by  construction  of  law,  is  immediately  in  the 
sheriff's  custody,  without  an  actual  arrest :  and  if  he  escape,  the 
plaintiff  may  declare  that  he  was  arrested  by  virtue  of  the  second 
writ,  which  is  the  operation  it  has  by  law,  and  not  according  to  the 
fact.  2  Bac.  Ab.  511,  Escape  in  civil  cases.  So,  it  is  said  by  Holt, 
C.  J.  in  Jackson  v.  Humphreys,  Salk,  273,  that  if  the  sheriff  of 
Northumberland  have  a  man  in  custody  in  Northumberland,  and  the 
sheriff  is  in  London,  and  a  writ  is  delivered  to  him  against  that  per- 
son, he  is  in  custody  immediately,  upon  that  writ.  This  authority  is 
recognised  in  Bull.  JY.  P.  66. 

No  distinction  can  be  drawn  between  the  sheriff  and  his  deputy : 
they  are  in  law  considered  as  one  person.  An  arrest  by  the  she- 
riff's officer  is,  in  judgment  of  law,  the  same  as  if  the  arrest  were 
by  the  sheriff  in  person,  and  if  such  officer  suffer  the  party  to  es- 
cape, the  action  must  be  brought  against  the  sheriff.  2  Bac.  Ab. 
519.  5  Co.  89.  6  Bac.  Ab.  157.  In  Sanderson  v.  Baker  £ 
Martin,  2  Bl.  Rep.  833,  it  was  determined,  that  trespass  will  lie 
against  the  high  sheriff  for  the  bailiff's  taking  the  goods  of  A.  in- 
stead of  B.,  under  fi.  fa.:  and  it  is  said  by  Blackstoive,  J.,  that 
the  sheriff,  and  all  his  substitutes,  rr/ake  but  one  officer,  and  it  was 
so  held  in  2  Keb.  325,  Cromer  v.  Humberton,  and  in  19  Hen.  6, 
80.  M'-Intyre  v.  Trumbull,  7  Johns.  35,  decided  that  an  action 
lies  against  the  sheriff  for  the  act  of  his  deputy  in  taking  more  fees, 
on  levying  an  execution  than  are  allowed  by  law  ;  and  whether  the 
sheriff  recognised  the  act  of  his  deputy  or  not,  need  not  be  shown. 
In  Hazard  v.    Israel,  1    Binn.   210,  this  court  was  clearly  of  opi- 


392  SUPREME  COURT  [Lancaster, 

(Wheeler  and  another  v.  Hambright.) 

nion,  that  for  all  civil  purposes,  the  sheriff  is  answerable  for  the 
act  of  his  deputy,  though  not  criminally. 

2d.  As  to  the  deposition  of  Mr.  Shippen.  In  Hecker  v.  Jarret, 
3  Binn.  404,  the  court  intimated  a  doubt,  how  far  the  acknow- 
ledgment of  the  deputy,  of  things  done  by  him  in  the  course  of  his 
office,  is  evidence  against  the  principal,  or  whether  those  facts  must 
be  proved  by  the  oaths  of  witnesses ;  and  say,  that  some  difference 
of  opinion  appeared  to  have  existed  on  the  point.  The  doctrine 
now,  however,  is,  that  what  a  sheriff's  officer  has  said  at  the  time 
of  the  execution  of  a  writ,  or  concerning  the  custody  of  a  debtor 
taken  in  execution,  will  be  admissible  in  an  action  against  the  she- 
riff for  an  escape,  as  part  of  the  transaction  in  which  he  represents 
the  defendant,  and  for  which  the  defendant  is  responsible.  1  Phill. 
Ev.  76.  In  Mott  and  others  v.  Kip.  10  Johns.  478,  acknowledg- 
ments by  a  deputy  while  the  execution  was  in  force,  made  to  the 
plaintiff's  attorney,  were  held  evidence,  in  an  action  against  the 
sheriff  for  a  false  return  to  a  ji.  fa.  In  Yabsley  v.  Doble,  1  Ld. 
Raym.  190,  the  question  was,  if  the  confession  of  an  under  sheriff 
of  an  escape  be  evidence  against  the  high  sheriff,  and  adjudged  that 
it  was :  because  in  effect  it  charge  himself.  The  cases  on  this  head 
are  summed  up  in  2  Phill.  Ev.  217,  and  the  general  principle  laid 
down,  that  the  under  sheriff  is  the  general  agent  of  the  sheriff,  and 
that  his  admissions  are  to  be  considered  as  the  admissions  of  the 
sheriff.  In  Tyler  v.  Ulmer,  12  Mass.  Rep.  163,  in  an  action 
against  the  sheriff  for  the  default  of  one  of  his  deputies,  in  not  pay- 
ing over  the  amount  of  an  execution,  the  letters  of  the  deputy  were 
held  admissible  evidence.  In  the  present  case,  the  interval  was 
very  short  between  the  arrest  of  Wright,  and  the  admissions  of 
the  deputy  sheriff. 

Jenkins,  contra. 

1st.  The  English  law,  in  reference  to  the  high  sheriff  and  his 
deputy,  is  of  a  peculiar  kind,  and  does  not  prevail  here.  In  Eng- 
land, the  high  sheriff'  never  serves  process.  He  has  a  general  de- 
puty, who  is  his  general  agent,  who  transacts  all  the  business,  and 
issues  warrants  to  bailiffs  to  serve  process.  This  deputy  is  apprised 
of  all  writs  to  be  executed  by  the  sheriff.  But  here,  neither  the 
sheriff  nor  any  of  his  deputies  know  of  all  process.  The  plaintiffs 
put  their  writs  either  into  the  hands  of  the  high  sheriff,  or  any  of 
his  deputies,  at  their  pleasure.  In  his  case,  the  sheriff,  who  had 
the  plaintiff's  writ,  did  not  know  of  Hassan's  ca.  sa.  against  Wright, 
nor  did  the  deputy,  who  arrested  Wright  on  Hassan's  writ,  know 
of  the  planintiff's  writ.  The  fault  was  the  plaintiffs  in  not  carry- 
ing their  writ  to  the  sheriff  instead  of  one  of  his  deputies.  In 
Frost's  Case,  5  Co.  89,  the  defendant  was  in  the  custody  of  the 
sergeant  of  the  sheriff  of  London,  under  a  capias  ad  respondendum, 
when  Frost  delivered  his  capias  utlagatum,  to  the  same  sergeant. 
In  Atkinson  v.  Jamison,  cited  8  Johns.  381.,  A.  was  arrested  by 
the  sheriff,  and  a  detainer  in  another  suit  lodged  in  the  office  ;  be- 


May,  1823.]  OF  PENNSYLVANIA.  393 

(Wheeler  and  another  v.  Hambright.) 

for  the  detainer  was  known,  the  officer  who  had  made  the  arrest 
discharged  A.,  and  next  morning  he  was  arrested  on  the  detainer  ; 
it  was  held,  that  this  was  an  original  arrest,  and  not  a  retaking 
after  an  escape.  In  Jackson  v.  Humphreys,  the  case  put  by 
Holt,  C.  J.,  is,  of  a  person  in  custody  of  the  sheriff  of  Northum- 
berland, and  a  new  writ  delivered  to  the  same  sheriff,  not  of  dif- 
ferent writs  in  the  hands  of  the  sheriff,  and  his  officer,  without  their 
mutual  knowledge  of  the  facts. 

2d.  The  deposition  of  Mr.  Shippen,  in  the  part  struck  out,  was 
not  legal  evidence  against  the  defendant.  The  doubt  suggested  by 
this  court  in  Hecker  v.  Jarrat,  has  not  been  removed  by  any  later 
decisions.  In  the  first  place,  the  declarations  of  the  deputy  sheriff 
related  not  to  the  writ  in  his  hands,  but  to  the  writ  of  the  plain- . 
tiffs,  which  never  was  in  his  hands,  and  as  to  which  he  never  was 
deputy  or  agent.  But  even  if  they  concerned  a  writ  that  had  been 
in  his  hands,  yet  being  subsequent  to  the  transaction  of  the  busi- 
ness, they  were  not  evidence  to  affect  the  defendant.  The  cases 
show  that  such  declarations  are  not  evidence,  unless  they  form  part 
of  the  res  gesta.  Phillips  in  his  Treatise,  1  Phill.  Ev.  76,  con- 
fines it  to  what  the  officer  has  said  at  the  time  of  the  execution  of 
a  writ,  or  concerning  his  custody  of  a  debtor,  neither  of  which  is 
the  case  now  before  the  court :  and  he  says,  that  later  authorities 
have  restricted  such  evidence  to  cases  where  it  constitutes  a  part  of 
the  act  for  which  the  sheriff  is  responsible.  In  2  Phill.  217,  218, 
the  deputy  sheriff  is  treated  as  the  sheriff's  general  agent,  which 
he  is  not  in  Pennsylvania.  In  the  case  in  New-  York,  reported 
10  Johns.  478,  the  declarations  of  the  officer  were  made  in  the 
course  of  his  execution  of  the  writ.  Mr.  Shippers  deposition, 
in  the  part  struck  out  by  the  court  below,  narrates  allegations  made 
by  the  deputy  after  the  return  day  of  the  writ,  and  some  time  after 
all  the  circumstances  had  happened,  on  which  the  present  suit 
depends. 

Buchanan,  in  reply,  contended. 

1st.  That  Musser  was  a  general  deputy,  and  as  such  stood  in  the 
light  of  a  general  agent.  He  procured  satisfaction  or  security  on 
Hassan's  writ,  and  Wright  was  discharged.  As  deputy,  it  was 
his  duty  to"  go  to  the  sheriff's  office,  with  Hassan's  writ  before  he 
served  it.  The  arrangement  of  the  sheriff's  business,  and  of  his 
officer's,  is  his  own  concern  :  whatever  that  may  be,  he  is  the  re- 
sponsible officer.  It  would  be  out  of  the  power  of  the  plaintiffs  to 
prove  their  knowledge  of  Hassan's  writ :  it  is  sufficient  in  law, 
that  it  was  in  the  hands  of  the  deputy,  and  the  law  presumes  the 
sheriff's  knowledge  of  it.  He  relied  on  the  cases  cited  on  the  part 
of  the  plaintiff  as  completely  establishing  the  responsibility  of  the 
sheriff. 

2d.  The  declarations  of  the  deputy  were  offered  for  the  purpose 
of  proving  that  Wright  was  in  his  custody  at  a  certain  time.  These 
declarations  were  made  before  the  writ  was  returned  :  and,  there- 

vol.  ix.  3  D 


394  SUPREME  COURT  [Lancaster, 

(VVhcclcr  and  another  v.  Hambright.) 

fore,  fall  within  the  rule,  that  they  were  in  the  transaction  of  the 
business  as  deputy,  and  formed  part  of  the  res  gesta.  But  whether 
that  be  so  or  not,  the  deputy  sheriff  is  the  sheriff's  general  agent, 
and  his  admissions,  or  recognitions,  are  the  admissions  and  recog- 
nitions of  the  sheriff,  who  has  taken  security  from  him,  and  may 
look  to  him  for  indemnity,  in  case  of  recovery  against  himself. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  J.  The  argument  is,  that  the  existence  of  the  plaintiff's 
execution  in  the  hands  of  the  high  sheriff  being  unknown  to  the 
under  sheriff  when  he  arrested  Wright  on  Hassan's  execution, 
and  the  arrest  being  at  the  same  time  unknown  to  the  high  sheriff, 
neither  of  them,  separately,  did  the  plaintiffs  a  wrong :  so  that  al- 
though they  have  received  injury  somewhere,  they  are  to  have  re- 
dress nowhere.  There  is,  however,  no  rule  more  clearly  laid 
down,  or  more  firmly  established,  than  that  a  plaintiff  who  has  de- 
livered process  to  the  sheriff  to  be  executed,  has  nothing  to  do  with 
the  official  misconduct  or  mismanagement  of  the  under  sheriff;  and 
that  where,  by  the  arrest  of  an  under  sheriff'  or  bailiff,  the  prisoner 
is  in  legal  estimation  in  the  custody  of  the  high  sheriff,  the  latter 
is  exclusively  liable.  There  are,  it  is  true,  cases  in  the  books  of 
actions  for  escapes  against  bailiffs,  wardens,  and  jailers  ;  but  it  will 
be  found,  either  that  such  absolute  jailers  are  intended  as  writs  are 
directed  to,  or  that  the  bailiffs,  or  wardens,  were  officers  of  a  fran- 
chise, and  had  the  execution  of  all  process  within  its  limits ;  or 
were  in  some  way  or  other  exclusively  entitled  to  the  custody  of 
the  party  who  escaped.  But  wherever  the  person  who  makes  the 
arrest,  is  the  deputy  or  servant  of  the  sheriff,  the  custody  and  acts 
of  the  deputy,  are  the  custody  and  acts  of  his  principal.  It  is  an 
undoubted  principle,  that  where  there  are  two  or  more  persons 
who  all  constitute  but  one  officer,  as  in  London,  and  some  other 
places  in  England,  where  there  are  two  sheriffs,  an  arrest  by  the 
one,  will,  in  case  of  an  escape,  render  the  other  liable,  although 
he  neither  participated  in,  or  had  knowledge  of  the  arrest:  as  seems 
to  be  agreed  by  Holt,  C.  J.,  in  Taylor  v.  Clarke,  10  Vin.  Es- 
cape, B.  pi.  18.  3.  Lev.  399.  The  only  exception  to  this  princi- 
ple is  to  be  found  in  Marsh  v.  Astray,  Cro.  Eliz.  175,  where  it 
was  held,  that  if  a  writ  be  delivered  to  the  under  sheriff' to  summon 
a  party  and  he  neglect  to  return  it,  an  action  will  lie  against  him  ; 
for  perhaps  the  sheriff  had  not  notice  of  it.  But  this  case  seems 
not  to  be  law.  Compleat,  Sheriff,  355-6 :  for  it  is  agreed  that  the 
sheriff  is  the  person  in  court  to  answer  all  actions  for  the  torts  and 
misdemeanours  of  the  under  sheriffs  and  their  bailiffs.  Laycoclc's 
Case,  Latch,  187.  For  a  voluntary  escape,  however,  an  action 
will  lie  against  a  jailer,  not  as  an  officer,  but  as  a  wrong-doer,  such 
an  escape  being  in  the  nature  of  a  rescue,  Lam  v.  Cotton,  1  Salk. 
IS,  pi.  8.  10  Vin.  Escape,  B.  pi.  19-20  :  but  even  there  the  sheriff 
aJso  is  liable  as  the  officer ;  and  where  that  is  the  case,  I  cannot 


May,  1823.]  OF  PENNSYLVANIA.  395 

(Wheckr  and  another  v.  Hambriglit.) 

see  how  he  can  avail  himself  of  the  misconduct  of  his  deputy.  In 
the  case  at  bar,  the  arrest  by  the  under  sheriff  was  the  arrest  of  the 
high  sheriff,  in  whose  custody,  to  every  legal  intent,  the  prisoner 
as  much  was,  as  if  he  had  been  arrested  by  the  high  sheriff  in  per- 
son, Frost's  Case,  5  Co.  69. ;  and  it  is  clear,  that  a  prisoner  in  ac- 
tual custody  on  one  writ,  is  by  operation  of  law  in  custody  on  every 
other  writ  lodged  against  him  in  the  sheriff's  office;  and  if  he  escape, 
the  plaintiff  may  declare  that  he  was  arrested  by  virtue  of  such  other 
writ.  Frost's  Case,  5  Co.  89.  Rolls.  Mr.  94.  Jackson  v.  Hum- 
phreys, Salk,  273,  pi.  6.  Why  then  should  the  plaintiff  be  preju- 
diced by  the  nature  of  the  relation  between  the  sheriff  and  his  de- 
puty ;  or  by  the  circumstance  that  the  deputy  had  not  both  writs  with 
him  ;  or  that  he  executed  the  one  on  which  the  arrest  was  actually 
made,  without  its  having  first  been  delivered  to  the  high  sheriff, 
and  without  his  knowledge,  when  the  deputy  by  the  letter  of  depu- 
tation, was  authorized  to  execute  process  delivered  to  him  by  third 
person  ?  The  sheriff  and  his  deputy  constitute  one  officer.  Corn- 
pleat,  Sheriff,  43.  It  is  true,  however,  that  from  its  great  antiquity 
and  convenience,  the  office  of  under  sheriff  is  recognised  by  the  law, 
so  far  as  to  enable  the  person  who  fills  it  to  execute  the  ordinary  du- 
ties of  the  high  sheriff :  yet  he  has  no  estate  or  interest  in  the  of- 
fice, nor  can  he  do  any  thing  in  his  own  name,  but  only  in  the  name 
of  the  high  sheriff,  who  is  answerable  for  all  his  acts.  Hob.  13. 
Salk.  96.  Dalt.  3.  The  under  sheriff  is  in  fact,  nothing  else  thau  a 
general  bailiff  over  the  whole  county,  and  differs  from  a  special  bai- 
liff only  in  this,  that  by  the  1st  and  2d  P.  fy  M.  c.  12,  the  sheriff  is 
bound  to  appoint  a  certain  number  of  bailiffs  to  make  replevins  and 
perform  certain  other  duties  in  his  name,  but  this  provision  of  the 
statute  is  not  in  force  here  :  whereas,  he  may  either  appoint  an  un- 
der sheriff,  or  execute  the  office  in  person.  But  the  sheriff  is  the 
responsible  head,  and  if  he  consults  his  convenience,  with  respect  to 
the  course  which  his  business  is  permitted  to  take,  it  is  at  his  peril. 
If  Hassan's  execution  had  been  lodged  in  the  office  or  delivered  to 
the  under  sheriff  by  the  sheriff  himself,  instead  of  being  delivered 
by  Hassan,  it  is  not  pretended  that  the  sheriff  would  not  have  been 
liable.  But  actual  ignorance  of  the  one  part  of  the  transaction  by  the 
sheriff,  and  of  the  other  by  his  deputy,  furnishes  no  excuse.  It  was 
the  duty  of  the  deputy  before  proceeding  to  the  arrest,  to  ascer- 
tain whether  other  writs  were  lodged  against  the  party,  and  for 
negligence  in  this  his  principal  is  answerable  ;  and  it  was  also  the 
duty  of  the  principal  to  compel  him  to  do  so,  or  else  to  restrain  him 
from  executing  any  other  process  than  what  he  himself  should  de- 
liver to  him,  at  least  he  was  bound  to  take  notice  of  every  thing 
which  any  of  his  authorized  agents  did  :  so  that  the  deputy  and  the 
principal  were  reciprocally  guilty  of  negligence.  An  officer  who 
is  not  bound  to  appoint  a  deputy  and  yet  does  so,  cannot  be  permit- 
ted to  say,  that  a  fault  in  the  execution  of  the  office  was  owing  in 


396  SUPREME  COURT  [Lancaster, 

(Wheeler  and  another  v.  Hambright.) 

part,  to  want  of  knowledge  in  himself,  and  in  part  to  want  of  know- 
ledge in  his  deputy  :  else  it  would  be  easy  for  the  officer  and  the  deputy 
to  shuffle  the  imputation  of  negligence  from  one  to  the  other,  till,  as 
.  in  this  instance,  it  would  in  the  end,  rest  nowhere.  The  only  way 
in  which  the  defendant  could,  in  this  instance,  controvert  his  liability 
with  any  thing  like  a  chance  of  success,  would  be  by  insisting  that 
the  arrest  was  entirely  void,  by  reason  of  the  writ  not  having  been 
lodged  in  his  office.  But  the  terms  of  his  own  deputation  are  against 
that  conclusion,  the  deputy  being  authorized  to  execute  all  writs 
which  the  high  sheriff,  or  any  person  for  him,  should  put  into  his 
hands.  This  must  have  been  designed  to  sanction  the  universal 
practice  of  putting  process  directly  into  the  hands  of  the  under  sheriff; 
but  even  the  existence  of  such  a  practice  with  the  knowledge  and  the 
assent  of  the  sheriff  would  amount  to  an  authority.  It  will  scarcely 
be  pretended  that  Wright  could  have  maintained  trespass  against 
the  under  sheriff,  because  the  writ  had  not  been  in  the  sheriff's  of- 
fice. Even  taking  the  defendant,  therefore,  to  be  an  innocent  person, 
a  loss  suffered  in  consequence  of  his  acts  ought  to  be  borne  by  him, 
rather  than  by  the  plaiutiff,  a  person  equally  innocent,  whose  acts 
did  not  contribute  to  it.  But  the  case  would  be  very  different  if  it 
should  appear  that  the  plaintiff  had  put  his  execution  into  the  of- 
fice, knowing  that  the  first  process  had  been  delivered  to  the  under 
sheriff,  and  with  a  view  to  fix  the  sheriff:  that  would  be  such  a  fraud 
as  would  preclude  him  in  any  event. 

This  may  seem  sharp  doctrine  towards  sheriffs ;  but  it  is  not  more 
sharp  than  the  law  is  in  the  case  of  an  escape  by  reason  of  defi- 
ciency of  the  jail ;  or  in  the  case  of  a  rescue  by  rebels  or  insurg-ents, 
however  overwhelming  the  force  ;  although  the  sheriff  would  be 
excused  for  a  rescue  by  foreign  enemies,  or  for  an  escape  in  conse- 
quence of  sudden  fire  ;  and  in  this  respect  the  custody  of  prisoners 
resembles  that  of  goods  bailed  to  a  carrier,  who  is  answerable  for 
the  loss  of  them,  except  where  it  happens  by  the  act  of  God,  or 
the  common  enemy.  The  strictness  of  the  law  in  this  respect,  arises 
from  public  policy.  The  sheriff  takes  his  office  for  better  for 
worse ;  losses  in  particular  instances,  being  compensated  by  extra- 
ordinary gains  in  others.  At  all  events  it  is  better  he  should  bear 
the  risk  of  casual  loss,  than  that  the  public  should  be  left  unpro- 
tected. 

At  the  trial,  the  plaintiffs  offered  evidence  of  certain  declarations 
or  admissions  of  the  under  sheriff,  to  their  attorney  made  after  the 
return  day  of  the  writ,  but  before  it  was  actually  returned  ;  which 
the  court  rejected,  and  sealed  a  bill  of  exceptions.  These  admis- 
sions were  made  by  the  under  sheriff  in  the  course  of  the  business  of 
the  office,  and  while  the  writ  was  in  the  sheriff's  hands,  and  were, 
therefore,  clearly  competent  evidence ;  although  not  for  the  reason 
assigned  in  Yabsley  v.  Doble,  1  Lord  Ray?n.  190,  that  as  the 
under  sheriff  had  given  security  for  the  due  performance  of  the  of- 


May,  1823.]  OF  PENNSYLVANIA.  397 

(Wheeler  and  another  v.  Hambright.)  ' 

fice,  his  declaration  went  to  charge  himself,  he  being  answerable 
over,  and  the  real  party  in  interest.  The  declarations  of  an  under- 
sheriff,  are  evidence  to  charge  the  high  sheriff  only  where  his  acts 
might  be  given  in  evidence  to  charge  him ;  and  then  rather  as  acts 
than  as  declarations  ;  his  declarations  being  considered  as  part  of  the 
res  gesta.  It  is  for  this  reason  that  his  declarations  to  a  stranger 
are  not  evidence  against  a  sheriff. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


[Lancaster,  May  19,  1823.] 
AUWERTER  against  MATHIOT,  Sheriff. 

IN  ERROR. 

The  judgment  creditors  of  a  vendee  of  land  who  has  paid  part  of  the  purchase  money 
and  has  possession  of  the  land,  but  has  received  no  deed,  are  entitled  to  the  pro- 
ceeds of  sale  of  his  title  under  an  execution,  in  preference  to  the  vendor. 

A  sheriff's  sale  may  be  set  aside,  where  the  purchaser  may  be  injured  in  conse- 
quence of  a  misrepresentation  of  the  terms  of  sale,  occasioned  by  the  act  of  the 
sheriff. 

Error  to  the  District  Court  for  the  city  and  county  of  Lancaster, 
in  a  suit  brought  by  Leonard  Auwerter  against  John  Mathiot,  sheriff 
of  that  county,  to  recover  certain  moneys  in  his  hands  arising  out  of 
a  sheriff's  sale  made  by  him  of  the  property  of  William  Lytle.  On 
the  trial  of  the  cause  in  the  court  below,  a  verdict  was  given  for  the 
plaintiff,  subject  to  the  opinion  of  the  court  on  a  case  stated  in  the 
nature  of  a  special  verdict. 

The  following  opinion  of  the  president  of  the  court  below  which 
contains  the  principal  facts,  was  filed  of  record  and  was  now  brought 
up  by  writ  of  error. 

Judgments  were  obtained  in  the  Court  of  Common  Pleas  of  this 
county,  against  William  Lytle, 

By  J.  Griffith,  for  the  sum  of  -  -         -         -  $  550  48 

do.         do.         do.         -  -  1100  00 

By  M.  Mussleman,  for  the  sum  of  -  -         -         -  309  89 

And  by  L.  Auwerter,  for                                               -  1906  96 

Amounting  in  the  whole  to  the  sum  of  -        $3867  33 

At  the  time  of  these  judgments,  W.  Lytle  was  in  possession  of  a 
tract  of  land,  which  he  purchased  of  one  John  Barkman.  The  con- 
tract of  purchase  was  by  parol,  for  the  sum  12,348  dollars.  About 
6000  dollars  of  the  purchase  money  was  paid  to  Barkman,  and  pos- 
session of  the  premises  was  delivered  to  Lytle,  who  continued 
therein,   but   no    deed   was   then    executed,    and    the   balance   of 


398  SUPREME  COURT  [Lancaster, 

(Auwcrtcr  v.  Malhiot,  Sheriff.) 

the- purchase  money  is  unpaid,  and  Barkman  retains  the  legal  title. 
So  that  Lytle  had  an  equitable  title  only,'  but  would  have  a  right 
to  call  for  the  legal  title  upon  payment  of  the  remainder  of  the  pur- 
chase money. 

To  November  Term,  1816,  Lytle  brought  his  action  against  Bark- 
man  upon  his  contract,  which  went  to  an  arbitration ;  and  on  the 
17th  of  January,  1817,  the  arbitrators  filed  their  report,  awarding 
that  there  was  due  to  the  defendant  from  the  plaintiff,  for  the  pur- 
chase money,  the  sum  of  6520  dollars  47  cents  to  be  paid  on  the 
defendant's  making  a  clear  and  indisputable  title  to  the  plaintiff, 
free  of  incumbrances,  for  the  premises  sold  to  Lytle,  by  the  said  parol 
bargain  and  sale.  On  the  25th  of  April,  1817,  after  this  award, 
Barkman  executed  and  tendered  to  Lytle,  a  deed  for  the  premises 
with  a  general  warranty  ;  and  demanded  the  balance  of  the  purchase 
money  but  it  was  not  paid.  There  was  an  existing  mortgage  on 
the  premises  from  Barkman  to  the  executors  of  William  Bullen, 
dated  on  the  13th  of  April,  1805,  for  the  payment  of  £1000,  which 
was  assigned  on  the  13th  of  August  1812,  to  George  Ellmaker, 
who  on  the  13th  of  April,  1817,  assigned  it  to  George  and  William 
Eckert.  George  Eckert,  who  was  present  at  the  tender  of  the  deed, 
offered  to  release  the  mortgage  on  his  receiving  the  amount  due 
thereon,  though  the  exact  sum  did  not  appear,  out  of  the  purchase 
money  due  to  Barkman. 

In  November  Term,  1816,  a  suit  was  entered  in  the  name  of 
William  Powers,  jun.,  for  the  use  of.  William  Eckert,  against  Wm. 
Lytle  and  Reuben  Marsh,  which  was  referred  before  the  return  of 
the  writ,  and  an  award  was  filed  and  judgment  thereon  for  the  sum 
of  $581  90.  On  the  11th  October,  1816,  upon  the  execution  issued 
in  this  last  mentioned  suit,  the  sheriff,  the  defendant  in  this  suit, 
on  the  31st  July,  1819,  sold  the  land  in  possession  of  Lytle,  and  all 
his  estate  and  interest  therein  for  the  sum  of  5902  dollars,  and  the 
purchaser  on  that  day  signed  the  conditions  of  sale,  which  are  re- 
ferred to  and  made  part  of  this  case,  for  the  greater  certainty  as  to 
the  terms  thereof.  (a) 

The  sheriff  executed  his  deed  to  the  purchaser  for  the  premises 
sold  which  was  acknowledged  in  the  Court  of  Common  Pleas,  on 
the  26th  of  April,  1820,  and  delivered  to  the  purchaser,  who  paid 
the  purchase  money,  which  is  admitted  to  be  in  the  hands  of  the 
sheriff,  the  now  defendant.(b)  There  are  different  claims  to  the 
proceeds  of  this    sale,  the  judgment    creditors  contend  that  they 


(a)  The  following  was  one  of  the  conditions  of  sale. 

"  The  property  now  sold  as  the  real  estate  of  William  Lytic,  consists  of  his  right, 
title,  and  interest  of,  in,  and  to,  a  certain  tract  of  land  situate  in  Salisbury  township, 
containing  102  acres,  more  or  less,  whereon  is  erected  a  stone  messuage,  and  stone 
barn,  &c. 

(b)  On  motion,  the  Court  of  C«  mmon  Picas,  on  the  21st  and  26lh  April,  1820, 
ordered  the  sheriff  to  bring  the  money  into  court:  and  granted  a  rule  to  show  cause 
why  the  money  arising  from  the  sale  of  Lytlc's  property,  should  not  be  paid  to  J. 
Barkman's  creditors,  and  himself. 


May,  1823.]  OF  PENNSYLVANIA.  399 

(Auweiter  v.  Mathiot,  Sheriff.) 

must  be  appropriated  to  their  judgments,  as  far  as  they  go ;  John 
Barkman  claims  it  by  virtue  of  his  lien,  and  contends  that  the 
general  judgment  creditors  can  take  nothing  till  he  is  satisfied 
for  the  balance  of  his  purchase  money,  which  is  a  specific  lien  on 
the  land ;  that  he  is  entitled  to  the  preference,  and  that  his  estate 
cannot  be  taken  to  pay  the  debts  of  William  Lytle.  This  ques- 
tion is,  therefore,  distinctly  raised  by  the  case  stated,  and  if  Bark- 
man  is  entitled  to  the  priority,  his  claim  takes  the  whole  money, 
and  the  judgment  creditor  get  nothing,  and  the  plaintiffs  in  this 
suit  must  fail.  But  if  Barkman  be  not  entitled  to  have  his  claims 
satisfied  out  of  the  proceeds  of  sale  then  the  claim  of  the  plaintiff 
is  covered  by  the  amount  of  sales  in  the  sheriff's  hands,  and  the 
verdict  must  stand. 

The  case  has  been  argued  on  both  sides,  with  great  ability,  and  I 
have  given  to  it  all  the  consideration  in  my  power  ;  and  have  strug- 
gled, if  possible,  to  find  a  doubt  or  difficulty.  But  I  have  not  been 
able,  with  all  the  assistance  of  the  arguments,  to  start  a  point  to 
create  any  hesitation  as  to  the  law  of  the  case,  and  my  opinion  is 
clear  and  decided. 

That  John  Barkman  has  a  lien  on  the  premises  for  his  unpaid 
purchase  money  is  without  doubt ;  and  that  lien  will  follow  the  land 
into  whose  possession  soever  it  may  come;  and  a  purchaser  from 
Lytle,  either  directly  or  by  operation  of  law,  will  hold  subject  to 
the  same  lien.  Barkman  has  retained  the  legal  title;  and  it  is 
a  principle,  that  where  a  subsequent  purchaser  acquires  a  mere  equi- 
table interest,  he  is  not  entitled  to  notice  of  the  lien  of  the  origi- 
nal vendor ;  he  must  look  to  the  interest  he  acquires  ;  and  if  he 
finds  no  legal  conveyance  of  the  land,  he  cannot  set  up  the  want 
of  notice  of  the  lien  on  the  land  for  the  original  purchase  mo- 
ney. As  this  case  is,  therefore,  it  is  clear  of  all  the  litigated 
questions  on  the  subject  of  lien,  which  have  agitated  the  courts 
of  late  years,  but  depends  on  first  principles.  It  is  not  necessary 
to  say  more  upon  it,  or  to  enter  into  a  consideration  of  the  cases 
on  this  very  important  subject.  But  Lytle  has  also  a  lien,  so  far 
as  he  has  paid  money  on  his  contract,  in  case  a  proper  title  be  not 
made  to  him.  And  in  this  respect,  the  right  is  reciprocal,  and  I 
incline  to  think,  though  it  is  not  necessary  to  decide,  that  in  this 
case  a  judgment  against  Barkman,  after  the  contract  and  posses- 
sion delivered  to  Lytle,  would  affect  the  land  no  further  than  to  the 
extent  of  the  purchase  money  unpaid ;  Barkman  being  a  trustee 
for  him,  holding  the  legal  title  as  a  security  for  what  may  not  be 
paid.  Lytle,  has,  therefore,  an  equitable  interest  in  the  land,  he 
paid  a  large  sum  of  money  on  account,  and  had  the  possession. 
That  is  such  an  interest  as  by  the  law  of  Pennsylvania  can  be  taken 
in  execution  and  sold.  It  is  entirely  distinct  from  the  claim  or  lien 
of  Barkman,  which  cannot  be  prejudiced.  His  lien  affects  the 
whole  land  and  surmounts  the  mere  equitable  interest  which  his 
general  creditors  have  a  right  to,  placing  themselves  in  the  situation 


400  SUPREME  COURT  [Lancaster, 

(Auwertcr  v.  Malhiot,  Sheriff.) 

of  the  vendee,  with  the  right  to  call  for  the  title,  on  payment  of  the 
balance  of  the  purchase  money. 

The  purchaser  at  sheriff's  sale  purchased  only  the  title  of  the 
debtor,  whatever  it  may  be.  If  he  has  but  an  equity,  the  purchaser 
acquires  no  more ;  he  cannot  raise  himself  higher  than  the  debtor, 
and  he  must  abide  by  the  situation  in  which  the  debtor  himself  stood. 
If  his  title  was  defective  the  title  of  the  purchaser  can  be  no  stronger. 
The  sheriff  sells  the  interest  of  the  debtor  in  the  execution,  what- 
ever that  may  be.  He  does  not  stipulate  for  the  soundness  of 
the  title.  The  purchaser  must  take  that  at  his  risk,  and  so  it  has 
been  universally  understood.  He  therefore  does  not  sell  out  and 
out,  as  has  been  contended.  He  sells  by  authority  of  law,  and  can- 
not go  beyond  his  power  or  undertake  to  give  a  better  title  than 
the  defendant  in  the  execution  himself  had.  He  could  not  there- 
fore sell  or  affect  Bark-Juan's  interest.  Barkman  was  neither  party 
nor  privy ;  his  interest  was  paramount,  and  could  not  be  prejudiced. 
He  shall  not,  therefore,  interfere  with  the  creditors  claiming  merely 
a  lien  upon  the  equitable  interest  of  Lytle,  distinct  from  the  legal 
title  to  the  land  which  Barkman  retained  as  a  security  for  his  con- 
tract. 

There  is  no  analogy  between  this  claim  and  the  lien  of  a  judg- 
ment. It  is  a  real  interest  in  the  land,  a  charge  upon  which  de- 
scends, and  is  assigned  with  it.  The  equitable  owner  has  a  distinct 
interest,  which  may  be  followed  by  his  creditors,  who  may  take 
it  in  execution,  and  sell  it ;  but  they  can  only  sell  it  subject  to  this 
charge.  The  interest  of  the  original  vendor  cannot  be  affected. 
He  sustains  no  injury  by  such  sale,  nor  shall  he  take  any  benefit 
from  the  proceeds.  The  verdict  is  to  stand  and  judgment  is  to  be 
entered  for  the  plaintiff. 

It  was  now  assigned  for  error  in  this  opinion,  that  the  court  be- 
low erred. 

1st.  In  not  extending  to  the  purchaser  the  legal  and  equitable 
protection  of  having  the  purchase  money  applied  to  discharge  the 
liens  and  incumbrances  against  the  estate  purchased. 

2d.  In  not  declaring  the  mortgage  to  William  Butler  transferred 
to  Ellmaker  and  by  him  to  the  Messrs.  Eckerts,  entitled  to  be  paid 
out  of  the  purchase  money,  in  preference  to  any  of  William  Lytle's 
judgment  creditors. 

3d.  In  not  declaring  the  judgment  creditors  of  John  Barkman, 
which  bound  his  interest  in  this  land,  in  the  hands  of  Lytle,  enti- 
tled to  a  preference  over  the  judgment  creditors  of  William  Lytle. 

4th.  In  not  declaring  that  John  Barkman1  s  judgment  for  the 
balance  of  the  original  purchase  money  due  to  him  from  Lytle  for 
the  land  since  sold  by  the  sheriff,  which  was  secured  by  the  legal 
or  equitable  title  being  retained  by  Barkman,  was  entitled  to  be 
paid  in  preference  to  Lytle1  s  judgment  creditors. 

The  case  was  argued  by  Rodgers  and  Hopkins,  for  the  plaintiff 
in  error ;  and  by  Buchanan,  contra. 


May,  1823.]  OF  PENNSYLVANIA.  401 

(Auwerter  v.  Mathiot,  Sheriff.) 

For  the  defendant,  it  was  contended,  that  on  the  day  of  sale, 
Lytle  had  the  possession  and  an  equitable  title ;  a  right  to  the  legal 
title,  on  payment  of  the  residue  of  the  purchase  money.  Bark- 
man  had  the  legal  title,  subject  to  be  divested  on  payment  of  the 
purchase  money.  The  proceeds  of  sale  of  Lytle'' 's  interest  in  the 
land  ought  to  be  applied  to  the  discharge  of  liens  upon  his  property, 
held  by  his  creditors,  and  not  to  other  persons,  in  the  situation  of 
Barkman  and  his  creditors.  The  latter  have  no  claim  to  this  mo- 
ney. Lytle  had  an  interest  subject  to  execution  and  sale  by  the 
sheriff,  and  the  purchaser,  according  to  the  conditions  of  sale, 
bought  all  his  interest,  but  the  sale  had  no  effect  on  Barkmari's  title. 
That  remained,  and  he  might  sustain  ejectment  for  the  land.  1 
Yeates,  12,  393.  Irvine  v.  Campbell,  6  Binn.  118.  4  Johns.  216. 
The  purchaser  cannot  complain,  for  he  buys  at  sheriff's  sale  at 
his  own  risk.  5  Serg.  fy  Raicle,  223.  A  prior  mortgage  is  not 
affected  by  a  subsequent  judgment,  and  execution,  and  sale,  by  the 
sheriff.  Febiger  v.  Craighead,  4  Dall.  151.  2  Yeates,  42.  He  need 
not  take  the  money  from  the  sheriff.  It  could  not  be  that  he  could 
take  his  balance  of  purchase  money  out  of  this  fund,  or  not,  at  his 
pleasure. 

For  the  plaintiff",  it  was  said,  that  Barkman,  or  his  mortgagee 
were  entitled.  Lytle  became,  from  the  time  of  sale,  the  owner  of 
the  land,  and  Barkman  had  only  an  equitable  lien,  by  virtue  of 
which  he  had  a  right  to  demand  the  money  of  the  sheriff.  The 
debt  of  Barkman  constituted  an  equitable  incumbrance,  and  equita- 
ble incumbrances  are  paid  according  to  priority.  1  Fonb.  310. 
This  court  has  exercised  the  power  of  appropriating  the  money 
arising  from  sales  made  by  sheriffs.  Patterson  v.  Sample,  4  Yeates, 
315.  In  the  Bank  of  North  America  v.  Fitzsimmons,  3  Binn.  358, 
the  Chief  Justice  says,  that  "  it  has  been  a  practice  of  long  stand- 
ing in  this  state,  when  the  sheriff  sells  land^by  virtue  of  an  execu- 
tion, to  sell  it  for  its  full  value,  without  regard  to  the  lien  of  judg- 
ments, and  to  apply  the  purchase  money  to  the  discharge  of  those 
liens,  according  to  their  order."  It  is  of  great  importance  that 
lands  sold  by  the  sheriff  should  bring  their  full  value,  which  can- 
not be  unless  the  purchase  money  be  applied  to  pay  off  incuiri' 
brances  of  every  sort.  The  intent  of  the  sale,  in  this  case,  was,  that 
the  full  value  should  be  paid,  and  the  money  applied  to  pay  incum- 
brances  of  every  kind  in  their  order,  according  to  the  practice,  and 
the  legal  policy  of  Pennsylvania,  since  the  act  of  1700,  1  Sm. 
Laws,  7,  and  it  was  so  understood  by  the  purchaser.  It  will  be  a 
surprise  upon  him,  if  he  does  not  obtain  a  clear  title.  If  Bark- 
man's  claim  is  a  lien,  why  should  it  not  be  paid  as  well  as  a  prior 
judgment  or  mortgage  1  It  is  in  nature  of  a  mortgage.  In  Le- 
vinz  v.  Will,  1  Dall.  430,  the  proceeds  of  sale  were  applied  to  the 
motgagee  holding  an  unrecorded  mortgage.  In  Petry  v.  Beauvear- 
let,  1  Binn.  97,  the  court  allowed  the  sheriff  poundage  on  mo- 
ney paid  on  account  of  a  prior  mortgage.     As  soon  as  the  agree? 

vol.  ix.  3  E 


402  SUPREME  COURT  [Lancaster, 

(Auwerter  v.  Mathiot,  Sheriff.) 

ment  of  sale  was  made,  the  vendee  became  a  trustee  for  the  vendor 
for  the  purchase  money.  Sudg.  120.  Pow.  on  Cont.  56  to  59. 
Barkman  is  a  judgment  creditor  for  this  very  money  ;  and  though 
his  judgment  was  subject  to  Jliucerter's,  it  binds  from  the  time  the 
lien  accrued,  namely,  the  time  of  the  agreement  to  sell.  It  is  not 
merged  in  the  judgment.  Bantleon  v.  Smith,  2  Binn.  146.  Gor- 
don v.  Correy,  5  Binn.  552.  At  all  events,  the  mortgagee  of  Bark- 
man  had  a  right  to  payment  out  of  the  money.  His  was  the  oldest 
incumbrance.  And  as  Barkman  has  paid  this  mortgage  by  a  sale 
of  his  other  property,  he  has  a  right  to  take  the  place  of  the  mort- 
gagee, and  come  into  indemnity  himself,  on  the  fund  in  the  sheriff's 
Hands. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  The  judgment  of  the  court  below,  in  this  cause, 
was  given  upon  a  case  stated,  which  may  be  explained  in  a  few 
words.  William  Lyile  made  a  parol  contract  for  the  purchase  of 
a  tract  of  land  of  John  Barhnan,  for  the  sum  of  12,348  dollars. 
He  paid  about  6000  dollars  of  the  purchase  money  to  Barhnan, 
who  delivered  him  the  possession  but  did  not  make  a  conveyance 
of  the  land.  While  Lytic  was  in  possession  several  of  his  credi- 
tors obtained  judgments  against  him,  on  one  of  which  judgments 
execution  was  issued,  and  all  his  right  to  this  land  sold  by  John 
Mathiot,  the  defendant,  sheriff  of  Lancaster  county,  for  the  sum  of 
5202  dollars.  This  money  was  received  by  the  defendant  and  is 
still  in  his  hands.  It  is  claimed  by  John  Barkman,  for  the  balance 
of  the  purchase  money  due  to  him  from  Lytic,  and  it  is  also 
claimed  by  the  judgment  creditors  of  William  Lytic,  who  contend 
that  they  had  a  lien  on  the  estate  of  Lytle,  of  whatever  nature  it 
might  be.  The  question  is,  which  of  these  claimants  are  entitled 
to  the  money.  If  the  judgment  creditors  are  entitled,  then  the  judg- 
ment of  the  District  Court  is  to  be  affirmed  ;  but  if  Barkman  has  a 
better  right,  the  judgment  must  be  reversed. 

By  the  law  of  Pennsylvania  all  the  real  estate  of  the  debtor, 
whether  legal  or  equitable,  is  bound  by  a  judgment  against  him, 
and  may  be  taken  in  execution  and  sold  for  the  satisfaction  of  the 
debt.  At  common  law,  an  equitable  estate  is  not  bound  by  a  judg- 
ment or  subject  to  an  execution.  But  the  creditor  may  have  relief 
in  chancery.  We  have  no  Court  of  Chancery,  and  have  therefore 
from  necessity  established  it  as  a  principle,  that  both  judgments 
and  execution  have  an  immediate  operation  on  equitable  estates. 
We  must  consider  then,  what  was  the  nature  of  William.  Lytle 's 
estate  in  the  land  sold  by  the  sheriff.  It  is  very  clear  that  he  had 
only  an  equitable  estate.  The  legal  estate  remained  in  John  Bark- 
man, who  had  a  right  to  retain  it,  until  he  received  full  payment  of 
the  purchase  money.  On  the  other  hand,  Lytic  had  a  right  to  call 
for  a  conveyance  on  payment  of  the  balance  of  the  purchase  mo- 
ney. The  judgment  creditors  of  Lytle  had  a  lien  on  his  estate  such 
-is  it  was.     And  when  the  sheriff  sold  the  estate  of  Lytic  he  sold  it 


May,  1823.]  OF  PENNSYLVANIA.  403 

(Auwcrtcr  v.  Mathiot,  Sheriff.) 

such  as  it  was;   that  is  to  say,  a  right  to  demand  a  conveyance  of 
the  legal  estate  from  Barkman,  upon  payment  of  the  balance  of  the 
purchase  money  due  from  Lytle.     Of  the  right  of  Barkman,  the 
purchaser  from  the  sheriff  was  bound  to  take  notice  at  his  peril. 
If  he  examined  the  title  he  would  find  that  Lytle  had  not  the  legal 
estate ;  and  if  he  did  not  examine  it,  the  fault  was  his  own.     The 
sheriff  had  no  authority  so  sell  the  estate  of  Barkman,  nor  could  he 
in  any  manner  effect  it.     The  process  by  virtue  of  which  he  sold, 
commanded  him  to  sell  the  estate  of  Lytle.     It  being  the  estate 
of  Lytle  then  which  was  sold,  the  proceeds  of  sale  belong  to  those 
creditors  of  Lytle  who  had  a  lien  on  his  estate.     The   interest  of 
Barkman  was  distinct  from  the  interest  of  Lytle.     Barkman  had 
no   concern  either  in  the  sheriff's  sale,  or  the  proceeds  of  sale. 
He  retained  the  legal  title,  and   might  recover  in  an   ejectment 
against  the  purchaser  at  the  sheriff's  sale,  who  stood  in  the  place 
of  Lytle,  so  far  as  concerned  the  title  to  the  land.     The  case   of 
Lytle  was  altogether  different  from  that  of  a  man  seised  of  a  legal 
estate  in  fee,  subject  to  the  incumbrance  of  judgments,  &c.     There, 
when  the  sheriff  sells,  he  sells  the  legal  estate,  and  it  has  been  the 
custom  to  apply  the  proceeds  of  sale  to  the  discharge  of  the  in- 
cumbrances according  to  their  priority.     But  inasmuch  as  Lytle 
had  not  the  legal  estate,  the  proceeds  of  sale  were  applicable  to  the 
discharge  of  the  incumbrances  on  his  equitable  estate.     This  equi- 
table estate  must  be  supposed  to  be  valuable  ;  for  Lytle  had  paid 
about  6000  dollars  for  it.     His  judgment  creditors  therefore  had  a 
lien  on  something  substantial.     But  according  to  the  doctrine  con- 
tended for  by  the  defendant's  counsel,  the  judgment  creditors  lose 
every  thing,  and  the  purchaser  at  the  sheriff's  sale  gets  the  legal 
title  for  nothing.     The  purchaser,  who  bought  only  an  equitable 
title,  is  to  apply  his  money  in  the  first  place  to  the  payment  of  the 
balance  due  to  the  holder  of  the  legal  title,  ichich  he  did  not  buy, 
and  thus  he  will  obtain  a  complete  title,  both  legal  and  equitable, 
and  the  judgment  creditors  of  Lytle  will  get  nothing.     A  principle 
which  leads  to  such  a  result  must  certainly  be  unsound.     But   it 
has  been  said,  that  as  it  is  the  custom  in  Pennsylvania,  to  permit 
the  purchaser  at  sheriff's  sales,  to  apply  the  money  to  the  discharge 
of  incumbrance,  and  thus  obtain  a  clear  title,  the  purchaser  in  the 
present  instance  supposed,  that  he  was  to  have  the  same  privilege, 
and  will  be  very  much  injured  if  it  be  denied  to  him.     To  this  it 
may  be  answered,  that  the  purchasers  at  those  sales  buy  at  their 
own  peril.     There  is  no  warranty  of  title,  and  therefore  it  is,  that 
the  property  generally  goes  off"  at  a  price  far  below  its  value.     Ne- 
vertheless there  may  be  cases,  where  under  a  misapprehension  of 
the  terms  of  sale,  the  purchaser  may  be  so  much  injured,  that  it 
would  be  unjust  to  hold  him  to  his  bargain.     For  instance,  if  in  the 
very  case  before  us,  the  sheriff  had  given  cause  to  suppose,  that  the 
purchaser  was  to  have  a  complete  legal  title,  and  on  that  presump- 
tion he  had  bid  the  full  value  of  the  clear  legal  estate,  it  would  be 


404  SUPREME  COURT  [Lancaster, 

(Auwerter  v.  Mathiot,  Sheriff.) 

very  hard  that  after  paying  his  money,  he  should  have  to  buy  the 
legal  title  over  again.  But  it  was  his  business  to  inquire  into  that 
matter  before  the  money  was  paid,  and  had  he  brought  such  a  case 
as  I  have  mentioned,  before  the  court,  he  would  probably  have 
been  discharged  from  the  purchase,  and  a  new  sale  ordered.  But 
there  is  no  such  question  now  for  consideration.  The  case  present- 
ed to  us,  is  that  of  a  man  who  purchased  only  an  equitable  estate, 
and  we  are  to  decide  who  is  entitled  to  the  purchase  money.  The 
answer  is  plain,  those  are  entitled  who  had  liens  on  the  equitable 
estate.  As  the  principle  involved  in  this  case  is  important,  I  have 
given  it  full  consideration.  I  can  see  no  ground  on  which  John 
Barkman's  claim  to  the  money  in  the  hands  of  the  defendant  can 
be  supported.  It  follows,  that  it  must  belong  to  the  judgment 
creditors  of  Lytle.  I  am  therefore  of  opinion  that  the  judgment  of 
the  District  Court  should  be  affirmed. 

Judgment  affirmed. 


[Lancaster,  May  19,  1823.] 

SHARE,  Bail  of  VANLEAR,  against  HUNT  and  another. 

IN  ERROR. 

A  recognizance  of  bail  in  error  is  forfeited,  if  the  plaintiff  in  error  non-pros  the  writ 

by  agreement  with  the  other  party,  provided  there  be  no  fraud  or  collusion. 
On  the  replication  quod  habetur  tale  recordum  and  issue,  where  the  record  is  a  record 

of  the  same  court,  the  mere  entry  of  judgment  by  the  court,  without  fixing  a  day, 

though  informal,  is  regular,  under  our  practice. 
It  seems  fraud  in  non-prossing  a  writ  of  error,  cannot  be  taken  advantage  of  in  a  6uit 

on  the  recognizance,  under  a  plea  of  a  nul  tiel  record,  for  payment,  but  ought  to 

be  specially  pleaded. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county. 

The  action  in  the  court  below  was  a  scire  facias  on  a  recogni- 
zance of  bail  in  error,  brought  by  Thomas  Hunt  and  Israel  Fisher, 
plaintiffs  below,  against  Henry  Share.  By  the  evidence  filed  with 
the  opinion  of  the  court,  it  appeared  that  Hunt  and  Fisher  had 
recovered  judgment  in  the  same  court,  against  Vanlear,  on  an 
award  of  arbitrators,  on  which  a  writ  of  error  from  the  Supreme 
Court  was  taken  out.  Share  became  the  bail  in  error,  and  entered 
into  a  recognizance,  in  the  sum  of  1500  dollars,  to  the  plaintiffs, 
Hunt  and  Fisher,  conditioned,  "  that  he  ( Vanlear,)  would  prosecute 
the  writ  of  error  with  effect,  and,  in  case  the  said  judgment  should 
be  affirmed,  should  pay  the  judgment,  damages,  and  costs  in 
the  former  judgment  affirmed;  and  also  damages  and  costs  to  be 
awarded  for  delay  of  execution."  Afterwards,  on  the  21st  June 
1816,  the  plaintiffs,  Hunt  and  Fisher,  took  from  Vanlear  an  agree- 
ment, signed  and  sealed  by  him,  of  the  following  tenor :  "  I  agree, 


May,  1823.]  OF  PENNSYLVANIA.  405 

(Share,  Bail  of  Vanlear  v.  Hunt  and  another.) 

that  the  writ  of  error  sued  out  to  the  Common  Pleas  of  Lancaster 
county,  in  the  cause  in  which  Hunt  and  Fisher  are  plaintiffs,  and 
Isaac  Vanlear  defendant,  brought  to  April  term,  1816,  shall  be 
non-prossed  on  the  third  Monday  of  May  next,  at  the  meeting  of 
the  Supreme  Court  for  the  Lancaster  district,  and  no  other  writ 
of  error  shall  be  sued  out  in  this  cause.  Given  under  my  hand  and 
seal,  at  Lancaster ,"  &c.  The  plaintiffs  accordingly  entered  the 
non-pros. 

The  record  stated  the  proceedings  in  this  suit  in  the  court  be- 
low as  follows:  June  8,  1818.  The  defendant  pleads  payment, 
with  leave,  &c. ;  non  solvit  and  issue,  and  nul  tiel  record.  Plain- 
tiffs' reply,  quod  habetur  tale  recordum,  and  issue.  May  14, 
1819.  Verdict  for  plaintiffs,  for  1017  dollars  75  cents,  and  judg- 
ment. 

The  court  below  charged  the  jury  as  follows  : 
It  is  attempted  to  enter  into  the  merits  of  the  original  proceed- 
ings   against   Vanlear,  and  it  is   alleged,  that  the  judgment  was 
irregular  and  void.     I  am  of  opinion,  that  we  have   no   concern 
on  this  trial   with  any  error  or  irregularity  in  the   original  judg- 
ment of  Hunt  and   Fisher  against    Vanlear.     If  there    were   any 
irregularity   or  error  in  it,  there   was  a  time    when  those   errors 
and  irregularities  might  have  been  inquired  into.     That  time  has 
passed.     It  is  now  sufficient  that  there  is  such  a  judgment  remain- 
ing on  record  unreversed.     It  is  treated  by  the  defendant  as  a  judg- 
ment, in  taking  a  writ  of  error  upon  it,  and  it  is  recited  as  such, 
in  the  recognizance  into  which  he  and  his  security  entered.     No 
complaint  can  reasonably  be  made,  that  we  will  not  now  inquire 
into  the  errors  and  irregularities  alleged  ;  inasmuch  as  the  opportu- 
nities which  have  been  heretofore  afforded  to  the  original  defen- 
dant of  availing  himself  of  them,  have  not  been  embraced.     Its  lia- 
bility to  be  reversed  cannot,  at  this  time,  therefore,  be  a  subject  of 
investigation.     Then,  the  first  question  arises  on  the  construction 
of  the  terras  in  which  the  recognizance  is  drawn  up,  upon  which 
this  suit  is  instituted.     Under  the  recognizance,  in  order  to  save 
the  forfeiture  of  the  1500  dollars,  the  defendant  in  the  original  ac- 
tion,  Vanlear,  was  to  do  two  things :   one  was,  to  prosecute  the 
writ  of  error  with  effect;   and   the  other,  if  the  judgment  in  the 
Common  Pleas  should  be  affirmed,  to  pay  the  judgment,  damages, 
and  costs  in  the  judgment  affirmed,  &c.    If  Vanlear  failed  in  either 
of  these  particulars,  his  bail  became  liable.     If  the  writ  of  error 
were  non-prossed  or  discontinued,  or  the  judgment  affirmed,  Hunt 
and  Fisher  might  proceed  against  the  bail  upon  his  recognizance. 
In  this  case  the  writ  of  error  was  non-prossed.     The  non-pros  was 
entered  by  Vanlear^s  counsel,  by  his  voluntary  agreement  and  di- 
rection.    He   had  an  unquestionable    right  to  have  the  writ  non- 
prossed.    It  was  sued  out  by  himself,  for  his  own  benefit,  and  he 
was  at  liberty  to  withdraw  or  discontinue  it  whenever  he  pleased ; 
nobody  had  a  right  to  prevent  or  control  him.     By  this  act  of  his 


406  SUPREME  COURT  [Lancaster, 

(Share,  Bail  of  Vanlear  v.  Hunt  and  another.) 

the  recognizance  becomes  forfeited,  and  Share  is  rendered  liable 
according  to  its  tenor  ;  unless  the  non-pros  was  suffered  in  conse- 
quence of  a  collusion  with  the  plaintiffs,  and  with  a  fraudulent  de- 
sign of  fixing  the  bail  of  Vanlear.  Fraud  vitiates  every  trans- 
action, and  if  the  plaintiffs  were  guilty  of  the  fraud  alleged,  they 
would  justly  forfeit  the  benefit  of  the  recognizance,  and  your  ver- 
dict should  be  rendered  in  favour  of  the  defendant.  But  fraud  is 
never  to  be  presumed.  It  ought  to  be  proved  to  your  entire  con- 
viction. To  justify  your  finding  a  verdict  for  the  defendant,  you 
ought  to  have  full  and  satisfactory  evidence  of  a  collusion  between 
the  plaintiffs  and  Vanlear.  If  you  have  not  this  full  and  satisfac- 
tory evidence,  this  case  would  in  point  of  law,  in  my  opinion,  be 
clearly  in  favour  of  the  plaintiffs. 

To  this  charge  the  defendant  excepted. 

It  was  assigned  for  error, 

1.  That  the  plea  of  mil  tiel  record  was  tried  by  jury. 

2.  The  bail  was  discharged  by  the  negotiations  which  took  place 
between  the  original  plaintiffs  and  the  principal,  without  the  know- 
ledge of  the  bail. 

3.  The  recognizance  was  not  forfeited,  as  the  cognizance  of  the 
cause  was  improperly  withdrawn  from  the  Supreme  Court,  by  the 
original  plaintiffs  and  the  principal  without  the  knowledge  of  the 
bail,  by  which  a  reversal  was  prevented,  and  an  affirmance  never 
obtained. 

Hopkins,  for  the  plaintiff  in  error. 

1.  The  plea  of  mil  tiel  record  was  tried  by  jury.  The  evidence 
returned  shows,  that  the  record  was  read  to  the  jury.  There  is  no 
judgment  rendered  by  the  court  in  relation  to  it;  no  day  given  to 
bring  in  the  record  ;  but  the  judgment  rendered  on  the  verdict. 

2.  The  bail  in  error  was  discharged.  The  condition  of  the  re- 
cognizance is,  that  the  bail  shall  pay  the  original  debt  and  damages 
and  costs  incurred  by  the  writ  of  error,  in  case  the  judgment  shall 
be  affirmed.  But  the  judgment  never  was  affirmed:  the  writ  of 
error  was  non-prossed  by  the  agreement  of  the  principal  ;  and  it 
was  further  stipulated,  that  no  other  writ  of  error  should  be  sued 
out.  This  was  in  derogation  of  the  rights  of  the  bail,  who  relied 
on  the  error,  which  he  was  advised  was  in  the  record,  and  of  this 
he  ought  not  to  be  deprived.  Bail  are  always  favoured :  they  are 
not  bound  beyond  the  letter  of  their  engagement,  nor  if  there  be 
any  variation  from  their  agreement.  The  presumption  is,  that  the 
plaintiffs  were  parties  to  this  agreement,  and  on  its  face  it  bears 
marks  of  collusion.  He  cited  10  Johns.  327,  180.  2  Caines's  Cas. 
in  Er.  1.     1  Fern.  196.     2  Vern.  393.     2  Bro.  Ch.  578. 

Slaymaker  and  Buchanan,  contra. 

1.  The  cause  was  tried  on  the  plea  of  payment,  which  admitted 
the  recognizance.  The  plea  of  mil  tiel  record  was  put  in  during 
the  trial.  The  record  was  not  read  to  the  jury  by  the  plaintiffs, 
but  by  the  defendant,  who  wished  to  enter  into  the   regularity  of 


May,  1823.]  OF  PENNSYLVANIA.  407 

(Share,  Bail  of  Vanlear  v.  Hunt  and  another.) 

the  original  judgment.  The  charge  of  the  court  makes  no  mention 
of  the  issue  nut  tiel  record.  The  judgment  entered  generally  by 
the  court  decides  the  issue  of  nut  tiel  record,  as  well  as  the  matters 
determined  by  the  verdict  of  the  jury. 

2.  The  defendant  gave  no  evidence  of  fraud  or  collusion:  the  sub- 
scribing witness  to  the  agreement  was  not  called.  In  truth,  it  was 
the  mere  act  of  Vanlear  himself;  and  the  language  it  speaks  is  en- 
tirely his  language,  though  it  is  called  an  agreement.  He  had  a 
right  to  non-pros  his  own  writ  of  error,  and  to  stipulate  that  he 
would  not  sue  out  another.  It  is  well  settled,  that  the  recognizance 
of  bail  in  error  is  forfeited  by  a  non-pros,  or  discontinuance  of  the 
writ  of  error.  2  Tidd's  Pract.  99S.  A  bond  on  a  hominereplegi- 
ando  is  forfeited,  if  the  plaintiff  suffer  a  nonsuit.      1  Johns.  Cas.  23. 

Reply.  The  words  "it  is  agreed,"  show  two  parties  to  the 
writing.  There  was  no  proof  that  the  bail  was  ever  consulted  on 
the  agreement. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  This  was  a  scire  facias  on  a  recognizance  entered 
into  by  the  plaintiff  in  error,  as  bail  in  a  writ  of  error  on  a  judg- 
ment obtained  in  the  Common  Pleas  of  Lancaster  county,  by  the 
defendant  in  error  against  Isaac  Vanlear. 

The  condition  of  the  recognizance  was  in  the  usual  form,  that 
Vanlear  should  prosecute  the  writ  of  error  with  effect,  and  if  the 
judgment  should  be  affirmed,  pay  the  judgment,  damages,  costs,  &c, 
and  also  the  damages  and  costs  to  be  awarded  for  the  delay.  This 
writ  of  error  was  non-prossed,  by  agreement  of  the  plaintiffs  and 
defendant;  the  defendant  stipulating  that  no  other  writ  of  error 
should  be  sued  out.  The  first  plea  was,  payment  with  leave  to  give 
the  special  matters  in  evidence.  On  the  day  before  the  jury  was 
sworn  a  new  plea  was  added,  of  mil  tiel  record ;  to  which  the  plain- 
tiffs replied,  habelur  tale  recor dam.  The  plaintiff  in  error  contends, 
that  the  recognizance  was  not  forfeited,  inasmuch  as  the  judgment 
was  not  affirmed,  but  the  writ  non-prossed. 

The  law  must  be  very  defective  if  this  were  so.  The  object  in 
requiring-  security  for  the  payment  of  judgment  to  render  the  writ 
a  supersedeas  to  execution,  is,  to  secure  the  party  who  has  obtained 
the  judgment  from  the  injury  and  loss  of  the  debt,  that  might  arise 
from  this  interruption  and  delay  of  execution.  But  this  would  be  an 
ineffectual  and  abortive  security  :  and  if  an  embarrassed  debtor  can 
delay  and  suspend  the  execution  by  giving  bail,  and  then  neglect  to 
prosecute  his  writ,  return  the  record  or  assign  the  errors,  and  thus 
discontinue  his  writ  and  screen  his  bail,  then  the  giving  bail  in  error 
is  a  mere  ceremony,  and  nearly  as  idle  as  the  warranty  of  a  common 
vouchee  in  a  recovery.  There  would  be  no  difficulty  in  procuring 
bail,  for  the  bail  could  be  exposed  to  but  little  risk,  where  the  writ 
of  error,  as  in  too  many  cases,  is  for  the  mere  purpose  of  delay. 
John  Doe  would  be  as  good  bail  as  the  most  substantial  yeoman. 
The  opinion  of  the  court,  was  entirely  right  ;  for  the  essence  of  the 


403  SUPREME  COURT  [Lancaster, 

(Share,  Bail  of  Vanlear  v.  Hunt  and  another.) 

recognizance  is,  the  prosecution  of  the  writ,  and  the  not  so  doing1  ex- 
poses the  bail  to  the  payment  of  the  judgment  as  much  as  if  it  were 
affirmed  ;  the  condition  is  not  complied  with,  and  the  obligation  to  pay 
the  money  is  the  consequence  of  this  non-performance.  This  doc- 
trine is  contained  in  every  book  of  practice,  and  it  is  so  much  the  dic- 
tate of  common  sense,  that  it  is  unnecessary  to  spend  further  time  in 
proving  so  plain  a  proposition  ;  and  this  disposes  of  the  second  and 
third  assignments  of  error. 

If  it  were  true  in  fact,  that  the  issue  of  mil  tiel  record  was  tried 
by  the  jury,  this  would  be  a  fatal  objection,  but  however  inartificially 
the  record  is  made  up,  sufficient  appears  to  show  that  it  was  not  so. 

The  court  first  dispose  of  the  plea.  They  state,  that  they  have 
no  concern  with  the  alleged  error  or  irregularity  in  the  judgment; 
it  is  only  for  them  to  say,  whether  there  is  such  judgment  as  is  set 
out  in  the  scire  facias,  remaining  of  record  unreversed  :  and  they 
say,  there  is.  It  required  no  rule  to  bring  in  the  record,  no  time  to 
be  allowed  the  plaintiffs  to  produce  this  record.  They  had  it;  it  was 
in  the  court ;  it  was  a  record  of  the  same  court,  remitted  back  by  the 
Supreme  Court  when  the  non-pros  was  entered.  The  court  decide 
on  the  inspection  of  their  own  record,  and  do  not  leave  it  to  be  de- 
cided as  a  fact  by  the  jury,  or  to  be  decided  by  them  at  all.  It  might 
be  more  formally  entered  : — but  this  is  the  substance.  If  our  records 
were  scanned  with  the  scrupulosity  of  a  special  pleader,  few  records 
could  sustain  such  inquiry  and  test;  and  if  every  speck  which  an 
eagle's  eye  might  discover  were  a  ground  of  reversal,  forlorn  would 
be  the  hope  of  a  suitor  of  the  termination  of  this  suit  within  the  space 
of  a  common  life. 

The  only  material  question  was  as  favourably  treated  by  the  court 
as  the  plaintiff  in  error  could  honestly  require.  Fraud  will  vitiate 
every  proceeding,  however  solemn,  where  it  operates  on  the  interest 
of  third  parties  not  participating  in  the  fraud,  and  the  court  properly 
leave  it  to  the  jury  to  decide,  whether  the  non-pros  was  in  conse- 
quence of  a  collusion  between  the  plaintiffs  and  defendant,  and  with 
a  fraudulent  design  of  fixing  the  bail,  and  if  they  found  it  was  a 
continuance  to  fix  the  bail,  they  were  then  most  properly  told 
the  verdict  should  be  in  favour  of  the  bail.  But  I  rather  incline 
to  think,  that  the  fraud  could  not  be  given  in  evidence  on  the  plea 
of  payment  or  nul  tiel  record,  till  the  defendant  should  have  plead- 
ed that  the  writ  of  error  was  non-prossed  per  fr  nudum.  As  an 
action  against  an  executor  who  pleaded  a  judgment  and  no  assets 
ultra;  the  plaintiff  replies,  that  the  judgment  was  obtained  and  kept 
on  foot  by  fraud.  This  is  the  course,  and  should  have  been  adopted 
here.  But  the  plaintiff  in  error  has  no  cause  of  complaint.  He  had 
the  full  benefit  of  his  allegation  of  fraud,  as  if  it  had  been  pleaded 
in  the  most  special  and  technical  form. 

Judgment  affirmed. 


May,  1823.]  OF  PENNSYLVANIA.  409 

[Lancaster,  May  19,  1823.] 
KING  and  another,  Administrators  of  KING,  against  DIEHL 

and  another. 

IN  ERROR. 

Where  judgment  below  is  reversed,  and  a  venire  de  novo  awarded,  if,  on  another 
trial,  the  opinion  of  this  court  is  read  to  the  jury  by  one  party,  the  other  may  read 
the  charge  of  the  court  below,  to  explain  the  opinion,  though  not  as  evidence  of 
law  or  fact. 

If  a  legacy  be  payable  in  instalments,  and  the  date  of  the  last  instalment  expire  be- 
fore  the  testator's  death,  it  is  to  be  considered  as  a  legacy  payable  generally,  and 
carries  interest  from  one  year  after  the  testator's  death. 

Where  the  defendant  pleads  payment  to  a  bond,  with  leave  to  give  want  of  considera. 
lion  and  special  matters  in  evidence,  he  can  only  give  such  matters  in  evidence  as 
show  that  the  plaintiff  has  no  right  to  recover;  but  when  he  pleads  payment  with 
leave  to  give  defalcation  in  evidence,  he  may  give  in  evidence  matter  entitling  him 
to  recover  against  the  plaintiff  under  the  defalcation  act. 

Where  the  defendant  paid  money  to  the  plaintiff,  which  both  parties  thought  the 
plaintiff  was  entitled  to,  but  it  afterwards  turned  out  that  (he  plaintiff  was  not  en- 
titled  to  it,  held  that  interest  ought  not  to  be  paid  by  the  plaintiff  till  the  defend- 
ant explained  the  mistake  and  demanded  repayment. 

Where,  in  this  state,  a  legacy  is  granted  to  one,  and  afterwards  over  on  the  happen- 
ing of  a  contingent  event,  the  executor  ought  not  to  pay  to  the  first  legatee  with- 
out security,  if  required  to  take  security  by  the  legatees  over:  and  on  action 
brought  by  the  first  legatee,  the  court  would  require  security  before  execution 
issued. 

But  if  such  payment  be  made  with  the  consent  of  all  parlies  concerned,  the  execu. 
tors  would  not  be  liable  to  the  legatees  over. 

If  a  guardian  pay  to  his  ward  a  legacy  bequeathed  to  him,  then  to  others  on  a  con- 
tingency, if  that  contingency  happen,  the  guardian  cannot  recover  it  back  as  trus- 
tee  for  the  legatees  over ;  though  the  legatees  themselves  might  recover  it. 

Debt  by  Philip  J.  King  and  Charles  A.  Barnitz,  administrators 
of  Henry  King,  deceased,  against  Daniel  Diehl  and  Nicholas  Diehl} 
on  a  single  bill  dated  the  9th  June,  1814,  executed  by  the  defend- 
ants for  the  sum  of  481  pounds,  11  shillings,  and  6  pence :  payable 
to  Henry  King,  Jr.,  or  order,  on  the  1st  September,  1814,  and  as- 
signed by  Henry  King,  Jr.,  to  his  father  Henry  King,  the  intestate. 
The  defendant  pleaded,  "  payment  with  leave  to  give  mistake,  want 
of  consideration,  and  special  matters  in  evidence." 

On  the  trial  in  the  court  below,  the  defendants,  who  were  the 
guardians  of  Henry  King,  Jr.,  alleged,  that  the  consideration  of 
the  single  bill  was  a  legacy  bequeathed  to  the  said  Henry  King, 
Jr.,  by  the  will  of  his  grandfather  Peter  Diehl,  made  the  6th  Janu- 
ary, 1801.  The  bequest  of  this  legacy  was  as  follows:  "I  also 
give  and  bequeath  unto  Henry  King  my  grandson,  (the  issue  of 
my  daughter  Elizabeth,  deceased,  who  was  intermarried  with 
Henry  King,)  and  to  his  heirs  and  assigns,  the  sum  of  1000  pounds, 
in  real  gold  and  silver  money  current  in  Pennsylvania,  to  be  paid 
to  him  in  200  pounds  yearly  payments,  the  first  payment  whereof 
to  be  made  in  1808,  and  from  thence  200  pounds  successively  un- 
til the  whole  shall  be  fully  paid  ;  nevertheless,  if  the  said  H.  King 

vol.  ix.  3  F 


410  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

shall  die  unmarried  and  without  issue,  that  then,  and  in  such  case, 
the  sum  aforesaid  so  bequeathed,  shall  be  equally  divided  to  and 
amongst  all  my  children,  share  and  share  alike." 

The  executors  named  in  this  will  were  Peter  Diehl  and  Jacob 
Diehl,  two  of  the  testator's  sons.  The  testator  died  in  1812.  Hen- 
ry King,  Jr.,  the  legatee,  transferred  all  his  right  and  interest  in 
the  single  bill,  by  an  assignment  under  seal,  in  the  presence  of  two 
witnesses,  on  the  19th  September,  1815,  to  his  father,  Henri/ 
King,  the  intestate.  He  was  21  years  of  age  in  the  year  1814, 
and  died  in  the  year  1816  unmarried  and  without  issue. (a)  The 
defendants  had  given  another  obligation  to  Henry  King,  Jr.,  at 
the  same  time  they  gave  the  one  now  in  suit,  payable  on  the  1st 
May,  1815;  and  together  they  amounted  to  the  legacy  of  1000 
pounds.  The  other  obligation  was  also  assigned  by  Henry  King, 
Jr.,  to  the  intestate;  and  payments  were  made  by  the  defendants  to 
the  intestate  from  time  to  time,  on  account  of  these  obligations  to 
the  amount  of  upwards  of  2000  dollars. 

On  the  same  day  on  which  the  single  bills  were  given,  namely, 
the  9th  June,  1814,  certain  other  instruments  of  writing  were  ex- 
ecuted. 1.  An  agreement  between  Henry  King,  Jr.,  and  Nicho- 
las,  Jacob,  and  Daniel  Diehl,  executed  by  the  said  H.  King,  Jr., 
reciting  that  the  testator,  Peter  Diehl,  had  bequeathed  all  his 
lands  and  mills  to  his  said  sons,  Nicholas,  Jacob,  and  Daniel,  the 
said  H.  King,  Jr.,  in  consideration  of  the  payment  to  him  of  1000 
pounds  by  the  said  Nicholas,  Jacob,  and  Daniel  Diehl,  released  all 
his  claim  to  and  shares  in  the  messuages,  plantations,  and  tracts 
of  land,  devised  to  them  by  the  said  Peter  Diehl.  2.  An  acknow- 
ledgment by  H.  King,  Jr.,  under  seal,  that  he  had  received  of 
Nicholas  and  Daniel  Diehl,  his  guardians,  duly  appointed  by  the 
last  will  of  Peter  Diehl,  1000  pounds  in  full  satisfaction  of  all  lega- 
cies, and  of  his  share  of  the  estate  real  and  personal  of  his  late  gran- 
father,  Peter  Diehl;  and  a  release  in  full  to  them  as  guardians. 
3.  An  agreement,  under  seal,  executed  by  H.  King,  Jr.,  and  Jacob 
Diehl,  purporting  to  be  made  between  the  said  H.  King,  Jr., 
and  Jacob  and  Peter  Diehl,  executors  of  Peter  Diehl,  sen.,  that 
the  executors  might  sell  a  messuage,  tenement,  and  saw  mill  in 
York  county,  to  pay  Peter  DiehPs  just  debts  :  they  to  account  to  the 
said  H.  King.,  Jr.,  for  the  proportionate  part  of  the  balance  left  after 
the  debts  were  paid. 

By  the  will  of  Peter  Diehl,  deceased,  the  testator  created  a  fund 
for  the  payment  of  his  debts,  &c.  viz  :  all  his  outstanding  debts, 
several  sums  of  money  to  be  paid  by  his  sons,  (to  whom  he  had 
devised  particular  parts  of  his  real  estate,)  the  proceeds  of  certain 


(a)  See  a  former  report  of  this  ease  6  Serg.  Sf  Rowle,  29,  where  it  was  deter, 
mined,  that  the  limitation  over  of  the  legacy  being  to  lake  effect  on  the  failure  of 
issue  at  the  death  of  the  first  taker,  was  good,  and  vested  the  legacy  in  the  children 
of  the  testator. 


May,  1823.]  OF  PENNSYLVANIA.  411 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

lands  and  houses,  which  he  ordered  to  be  sold  by  his  executors, 
and  all  his  other  personal  property :  and  he  directed  that  if  any  surplus 
should  remain  after  payment  of  his  debts,  &c,  it  should  be  equally 
divided  among  his  four  sons,  Peter,  Nicholas,  Jacob,  and  Daniel. 
Of  the  sums  thus  directed  to  be  paid  by  his  sons,  there  was  a  sur- 
plus after  paying  debts,  &c  of  900  pounds  :  and  as  the  testator  left 
four  sons  and  one  daughter,  and  the  said  H.  King,  Jr.,  the  child  of  an- 
other daughter,  who  died  in  his  life  time,  the  plaintiffs  contended 
that  he  was  entitled  to  one-sixth  of  this  900  pounds ;  and  that  it 
formed,  in  part,  a  consideration  for  the  compromise  under  which 
these  single  bills  were  given  by  the  defendants. 

The  defendants  alleged,  that  the  bills  were  given  without  con- 
sideration: that  the  payment  to  the  intestate  had  been  made  by  mis- 
take :  and  claimed  a  verdict  for  the  amount  they  had  paid  with  in- 
terest. 

The  plaintiffs,  in  their  opening,  having  read  the  opinion  of  this 
court  delivered  on  the  former  writ  of  error  reversing  the  judgment  of 
the  court  below,  the  defendants  afterwards  offered  to  read  the  charge 
of  the  President  of  the  Court  of  Common  Pleas  delivered  on  the  first 
trial,  which  was  filed  of  record  in  the  court  below.  The  defendants 
objected,  but  the  court  below  allowed  it  to  be  read  and  the  plaintiffs 
excepted. 

The  court  charged  the  jury  upon  several  point  presented  to  them 
by  the  plaintiffs  and  defendants.  The  matters  contained  in  the 
charge,  so  far  as  they  are  material,  appear  in  the  errors  now  assign- 
ed in  this  court,  which  were  as  follows : 

1.  The  court  erred  in  admitting  in  evidence  the  charge  delivered 
by  them  upon  the  former  trial. 

2.  The  court  erred  in  instructing  the  jury,  that  no  interest  could 
be  legally  charged  on  the  legacy  given  to  Henry  King,  Jr.,  until  the 
expiration  of  one  year  after  the  testator's  death. 

3.  In  instructing  the  jury,  that  the  defendants  had  a  right  to  claim 
from  the  plaintiffs,  any  money  they  could  show  was  paid  to  Henry 
King  in  his  life  time  through  mistake,  and  without  consideration  ; 
and  that  if  the  jury  believed,  that  the  note  now  in  suit,  and  the  one 
given  at  the  same  time,  and  for  the  same  sum,  which  the  defendants 
gave  to  Henry  King  in  his  life  time,  were  given  for  the  j£1000,  then, 
as  the  legacy  was  not  a  lawful  consideration  for  the  notes,  the  whole 
money  paid  on  both  of  them  with  the  interest,  could  and  ought  to 
be  recovered  back  in  this  suit,  by  the  verdict  of  the  jury  in  favour 
of  the  defendants,  and  that  law  and  justice  should  require  it  to  be  so 
done. 

4.  In  instructing  the  jury,  that  the  sum  of  money  charged  by 
the  will  of  Peter  Diehl,  on  the  lands  thereby  devised  to  his  sons, 
and  to  be  paid  by  them,  was  part  of  the  testator's  personal  estate, 
and  so  far  as  not  otherwise  disposed  of  by  his  will,  was  bequeathed 
to  his  four  sons  by  the  will,  after  the  debts  were  paid  ;  and  that 
his  grandson,  Henry  King,  J.,  would  not  be  entitled  to  any  part 
thereof. 


412  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

5.  The  court  also  erred  in  instructing  the  jury,  that  if  money 
be  paid  by  one  man  to  another,  through  a  plain  mistake,  the  person 
so  paying  it  had  a  right  by  law  to  recover  it  back,  whether  the 
person  receiving  it  did  or  did  not  know  of  the  mistake,  and  al- 
though he  thought  he  had  a  right  to  receive  it. 

6.  In  instructing  the  jury,  that  the  payment  made  by  Nicholas 
and  Daniel  Diehl  to  Henry  King,  Jrs.,  assignees  after  his  decease, 
and  with  full  knowledge  of  that  fact,  are  not  such  acts  as  would 
prevent  them  from  setting  up  the  limitation  over  of  the  legacy  as 
a  defence  against  the  notes  in  the  assignee's  hands. 

7.  In  instructing  the  jury  in  the  following  terms,  to  wit:  The 
answer  of  the  plaintiff  to  the  defence  set  up  in  this  case  is,  that  the 
notes  were  not  given  for  the  legacy  alone,  but  the  defendants,  aware 
that  Henry  King,  Jr's.,  legacy  would  absolutely  vest  in  him  on 
his  marriage,  and  presuming  on  the  probability  of  his  marriage, 
knowing  that  he  was  entitled  to  a  share  of  the  estate  of  which  Pe- 
ter Diehl  died  intestate,  and  perceiving  a  controversy  likely  to 
arise  with  him  on  account  of  it,  for  the  purpose  of  preventing  all 
controversies  which  might  arise,  and  to  obtain  his  consent  to  a  sale 
of  the  mill  property  for  the  payment  of  the  debts  of  his  grandfather, 
entered  into  agreement  with  him  to  accomplish  those  objects,  gave 
these  notes  in  full  of  all  his  claims  upon  the  estate,  and  obtained 
his  release  of  all  demands.  If  you  are  satisfied,  from  the  evidence 
in  this  cause,  that  this  was  the  case,  then  your  verdict  ought  to  be 
in  favour  of  the  plaintiff,  for  the  amount  of  this  note,  with  the  in- 
terest from  the  time  it  became  due.  If  you  are  not  satisfied,  from 
the  evidence,  that  this  was  the  case,  then  your  verdict  ought  to  be 
in  favour  of  the  defendants,  for  such  sum  as  is  equal  to  the  amount 
which  has  been  overpaid  to  the  intestate. 

8.  And  the  court  erred  in  instructing  the  jury,  in  answer  to  the 
second  proposition  of  the  plaintiff,  in  this  particular  ;  that  the  jury 
were  not  informed,  that  the  circumstances  relied  upon  by  the  plain- 
tiff precluded  the  defendants  from  setting  up  as  a  defence  against 
the  payment  of  the  notes  an  alleged  mistake,  concerning  a  matter 
which  appeared  on  the  face  of  the  will  of  Peter  Diehl ;  but  they  were 
informed  that  such  circumstances  did  not  preclude  the  defendants 
from  showing  any  mistake,  if  they  could  do  it. 

Barnitz,  for  the  plaintiffs  in  error. 

1.  It  was  improper  that  the  court  below,  should  permit  their  for- 
mer charge  to  be  read  to  the  jury,  when  the  judgment  had  been  set 
aside  by  this  court,  for  the  errors  in  that  very  charge.  It  could  have 
been  read  with  no  other  view  than  to  influence  the  jury  :  and  could 
only  mislead  them.  It  contained  the  judge's  statement  of  facts,  as 
well  as  his  opinion  on  matters  of  law.  A  verdict  of  a  former  jury 
cannot  be  read  in  evidence,  if  the  judgment  has  been  arrested  or  re- 
versed. In  Shaeflfer  v.  Krcitzer,  6  Binn.  430,  it  was  determined, 
that  upon  an  appeal  from  an  award  of  arbitrators,  the  award  cannot  be 
read  to  the  jury. 


May,  1823.]  OF  PENNSYLVANIA.  413 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

2.  The  court  erred  in  saying  that  interest  was  not  due  on  the 
legacy  till  one  year  after  the  death  of  the  testator.  The  act  of  21st 
March,  1792,  provides,  that  where  no  time  is  limited  in  any  last 
will  or  testament,  for  the  payment  of  legacies,  that  then  the  exe- 
cutors shall  have  the  space  of  one  year  to  discharge  them.  But  the 
act  does  not  apply  in  this  instance,  because  there  is  a  time  limited : 
and  therefore  the  executor  is  not  entitled  to  the  delay  of  one  year. 

3.  The  defendants  were  not  entitled  to  recover  of  the  plaintiffs, 
any  money  paid  by  mistake,  or  without  consideration,  as  the  case 
stood  at  the  trial,  because  this  was  not  pleaded,  nor  had  any  notice 
been  given  by  the  defendants  of  such  claim.  The  defalcation  act 
of  1705,  1  Smith's  Laws,  49,  sect.  1.,  authorizes  the  defendant 
"  to  plead  payment  of  all  or  any  part  of  the  sum  demanded,"  and 
"  if  it  shall  appear,  that  the  plaintiff  is  overpaid,  then  they  shall 
give  in  their  verdict  for  the  defendant,  and  withal  certify  to  the 
court  how  much ;"  but  by  the  10th  section  of  the  act  of  the  14th 
February,  1729 — 30,  1  Sm.  Laws,  185,  where  there  are  mutual 
debts  there  cannot  be  a  set-off,  unless  on  pleading  the  general  issue 
notice  be  given  of  the  particular  sum  or  debt  intended  to  be  in- 
sisted on,  and  upon  what  account  it  became  due.  And  in  Boyd's 
Executors  v.  Thompson' 's  Executors,  1  Sm.  Laws,  42,  it  was  decided, 
that  the  demand  of  the  defendant,  not  having  been  pleaded  nor 
notice  given,  it  could  not  be  admitted  in  consequence  of  the  pro- 
visions of  the  act  of  14th  February,  1729 — 30.  But  interest  was 
not  recoverable  by  the  defendants,  under  any  plea  or  notice.  In- 
terest is  not  due  on  recovery  of  money  paid  by  mistake,  where 
neither  fraud  nor  surprise  can  be  imputed  to  either  party.  This 
was  expressly  decided  in  Jacobs  v.  Adams,  1  Datt.  52,  where  mo- 
ney was  recovered  back  from  executors,  who  had  received  it  under 
the  authority  of  a  will,  afterwards  set  aside.  So  in  Brown  v. 
Campbell,  1  Serg.  fy  Rawle,  176,  it  was  held,  that  if  the  plaintiff's 
money  be  improperly  applied  to  the  defendant's  use,  the  defendant 
is  in  no  fault  till  informed  of  this  fact,  and  therefore,  ought  not  to 
pay  interest. 

5.  The  court  erred  in  saying  that  H.  King,  Jun.,  was  not  enti- 
tled to  his  share  of  900  pounds,  being  the  amount  of  money  charged 
on  the  lands  beyond  the  debts  and  legacies,  and  not  particularly 
disposed  of. 

5.  The  court  laid  down  the  law  too  broadly.  They  should  have 
stated  the  exceptions.  Money  voluntarily  paid  with  full  knowledge 
of  all  circumstances,  or  with  the  means  of  obtaining  such  know- 
ledge, cannot  be  recovered  back.  1  Esp.  JV.  P.  (Gould's)  part.  1. 
pa.  5.  Money  paid  with  a  knowledge  of  facts  but  through  igno- 
rance of  law,  cannot  be  recovered  back.  lb.  192.  2  Com.  Cont. 
40.     Chitt.  on  Bills,  250. 

6.  This  error  was  relinquished  for  the  present. 

7.  The  court  in  their  answer  objected  to  in  the  assignment  of 
this  error,  confused  the  jury  by  throwing  the  plaintiff's  reply, 


414  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Deihl  and  another.) 
which  consisted  of  many  parts,  into  one,  and  telling  the  jury,  that 
if  they  were  satisfied  of  the  whole,  they  would  find  for  the  plaintiffs: 
whereas  if  any  of  the  grounds  taken  by  the  plaintiffs,  were  true,  the 
verdict  ought  to  have  been  for  the  plaintiffs.  In  Bailey  v.  Fairplay, 
6  Binn.  455,  this  court  held  the  charge  of  the  court  below  to  be, 
upon  the  whole,  incorrect,  though  so  far  as  the  judge  went,  he 
was  correct:  because  he  stated  only  part  of  the  law,  and  the  jury 
were  thus  suffered  to  fall  into  error,  by  which  the  defendants  were 
injured.  The  instructions  ought  not  to  be  given  in  such  a  manner 
as  to  mislead  the  jury. 

8.  The  jury  ought  to  have  been  informed  that  the  instruments 
executed  on  the  9thVwne,  1814,  showed  a  final  settlement  and 
compromise  between  the  parties,  of  all  controversies,  and  precluded 
any  allegation  of  mistake  of  right.  In  Pullen  v.  Ready,  2  Atk. 
607,  Hardwicke,  Lord  Chancellor,  says,  that  if  parties  are  enter- 
ing into  an  agreement,  and  the  very  will,  out  of  which  the 
forfeiture  arose,  is  lying  before  them  and  their  counsel,  while 
the  drafts  are  preparing,  the  parties  shall  be  supposed  to  be  ac- 
quainted with  the  consequence  of  law  as  to  this  point,  and  shall 
not  be  relieved,  under  a  pretence  of  being  surprised,  with  such 
strong  circumstances  attending  it.  So  in  Perkins  v.  Gay,  3  Serg. 
6f  Rawle,  327,  it  was  held,  that  where  parties  treat  on  the  basis 
that  the  fact  which  is  the  subject  of  agreement  is  doubtful,  and  the 
consequent  risk  each  is  to  encounter,  is  taken  into  consideration,  in 
the  stipulations  assented  to,  the  contract  will  be  valid,  notwith- 
standing any  mistake  of  one  of  the  parties  :  provided  there  be  no 
concealment  or  unfair  dealing  by  the  opposite  party,  that  would 
affect  the  other.  There  does  not  appear  to  have  been  any  con- 
cealment or  fraud  in  the  arrangements  of  the  9th  June,  1814,  and, 
being  a  family  settlement,  for  the  purpose  of  terminating  all  dis- 
putes, the  parties  to  it  are  concluded,  and  cannot  now  aver  mistake 
or  misapprehension. 

Cassat  and  Hopkins,  contra,  premised,  that  Peter  Diehl  had 
four  sons,  and  two  daughters,  one  of  whom,  Elizabeth,  was  the 
mother  of  H.  King,  Jun.,  and  died  in  her  father's  life  time ;  the 
other  daughter,  Catharine,  survived  the  testator.  The  defendants, 
who  were  the  guardians  of  H.  King,  Jun.,  were  in  nature  of  se- 
curities for  him,  that  in  case  of  his  death  unmarried,  the  money 
should  be  paid  to  the  legatees  over,  namely  the  five  children  of  Pe- 
ter Diehl.  Two  fifths  of  this  legacy,  in  that  event,  belonged  to  the 
defendants.  When  the  defendants  executed  these  single  bills,  they 
intended  to  pay  H.  King,  Jr.,  only  the  interest,  until  he  was  mar- 
ried :  and  then  he  would  have  been  entitled  to  them  absolutely. 
But  they  were  drawn  payable  absolutely,  by  a  blunder  of  the 
scrivener.     They  then  considered  the  errors  assigned. 

1.  The  charge  of  the  court  below  was  not  read  by  the  defen- 
dants until  the  opinion  of  the  Supreme  Court  reversing  the  judg- 
ment, had  been  read  by  the  plaintiffs.     The  charge  was  in  favour 


May,  1823.]  OF  PENNSYLVANIA.  415 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

of  the  plaintiffs  who  recovered  on  the  former  trial.  But  we  offered 
it  in  order  to  explain  the  opinion  of  the  Supreme  Court,  when  they 
reversed  the  first  judgment,  and  the  court  admitted  it  with  a  direc- 
tion to  the  jury,  that  the  charge  was  not  to  be  considered  as  esta- 
blishing any  fact.  Suppose  the  whole  case  had  been  reported, 
could  not  the  charge  of  the  court  be  read,  as  well  as  the  part  con- 
taining the  opinion  of  the  Supreme  Court? 

2.  As  to  the  time  when  the  interest  on  the  legacy  should  com- 
mence, the  court  charged  too  strongly  in  favour  of  the  plaintiffs,  be- 
cause the  interest  of  the  testator  was  that  the  legacy  of  1000  pounds 
should  be  paid  at  five  equal  annual  instalments,  without  interest  on 
any  until  the  time  of  payment  had  elapsed :  whereas  the  charge 
was  that  the  whole  legacy  bore  interest  from  the  end  of  one  year 
after  the  testator's  death.  But  as  the  times  of  payment  had  all  pass- 
ed before  the  death  of  the  testator,  let  it  be  considered  as  a  legacy 
payable  at  no  fixed  time,  and  then  it  is  governed  by  the  act  of  as- 
sembly, and  is  payable  at  the  end  of  one  year  after  the  testator's 
death.  This  is  not  a  legacy  to  be  paid  out  of  funds  to  be  raised  by 
the  executors  by  the  sale  of  land,  and  from  personal  property,  and 
is  not  a  legacy  charged  on  land.  2  Johns.  Cas.  300.  Another  ob- 
jection under  this  head  is,  that  the  court  charged  that  the  money  paid 
by  mistake  with  the  interest  due  thereon  should  be  recovered  back 
by  the  defendants.  On  the  subject  of  interest  our  courts  adopt  a 
more  liberal  rule  than  the  English.  This  action  was  commenced 
within  two  or  three  months  after  the  money  paid :  and  if  the  jury 
have  allowed  interest,  it  was  a  matter  within  their  discretion.  The 
court  will  support  a  verdict,  by  any  intendment  it  can  be  supported. 
2  Wils.  2.  In  4  Dall  279,  it  is  held,  that  interest  should  be  al- 
lowed where  one  retains  money  of  another  against  his  will. 

3.  Under  our  plea  of  payment,  we  were  entitled  to  give  in 
evidence  moneys  overpaid,  and  to  recover  a  verdict  fur  that  amount. 
The  act  for  defalcation,  passed  in  the  year  1805,  expressly  autho- 
rizes this  course,  and  requires  nothing  more  of  the  defendant  than 
the  plea  of  payment.  Under  the  23d  rule  of  the  court  below,  no- 
tice or  specification  is  necessary,  only  where  it  is  demanded  by 
the  plaintiff.  This  rule  is  that  "  where  leave  is  given  to  alter  a 
plea,  or  under  a  general  plea,  to  give  the  special  matter,  fraud, 
want  of  consideration,  particular  payments,  or  defalcation,  in  evi- 
dence, the  alteration  of  the  plea  shall  be  made,  and  a  specification 
of  the  special  matter,  fraud,  want  of  consideration,  payment,  or  de- 
falcation shall,  if  demanded,  be  furnished  to  the  opposite  party,  or 
attorney,  in  one  month  after  issue  joined,  or  in  some  term  pre- 
ceding that  in  which  thetrial  shall  be:  otherwise,  no  alteration 
shall  be  allowed,  nor  any  evidence  admitted  of  the  special  matter 
required  to  be  specified."  It  not  only  does  not  appear  that  any  de- 
mand was  made,  but  it  does  not  appear  that  on  the  trial  any  ob- 
jection was  made  to  the  special  matters  offered  by  the  defendants. 
As  to  the  act  of  1729 — 30,  it  is  confined  altogether  to  insolvent 


410  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

debtors :  and  it  is  plain  from  the  rule  of  court,  that  it  was  not  con- 
sidered to  embrace  any  other  cases. (a) 

4.  As  to  the  interest  of  H.  King,  Jr.,  in  the  surplus  paid  by 
the  devisees  of  the  lands,  beyond  what  would  satisfy  the  debts  and 
legacies,  this  is  a  question  of  intention,  arising  on  the  will.  The 
testator  intended  to  give  his  grandson,  H.  King,  Jr.,  1000  pounds, 
and  no  more.  All  the  residue  of  the  personal  property  was  given 
to  the  testator's  four  sons.  The  money  which  he  ordered  his  sons 
to  pay  was  made  part  of  his  personal  property,  and,  therefore,  all 
the  surplus,  whatever  it  might  be,  being  personal  property,  passed 
to  the  four  sons. 

5.  The  charge  of  the  court  is  complained  of,  because  it  stated, 
that  money  paid  by  mistake  could  be  recovered  back,  although  the 
party  to  whom  it  was  paid,  thought  he  had  a  right  to  receive  it. 
Nothing  can  be  more  correct  than  this  proposition.  It  is  objected, 
that  a  mistake  in  law  is  no  ground,  for  recovering  money  back : 
this,  however,  is  unreasonable,  because  a  mistake  in  law  has  the 
same  effect  in  misleading  an  innocent  person,  as  a  mistake  in  fact. 
Besides,  the  maxim  ignarantia  juris  nemenem  excusat,  is  applica- 
ble only  to  criminal  cases.  In  Farmer  v.  Arundel,  2  Bl.  Rep. 
825,  De  Grey,  C.  J.,  says,  when  money  is  paid  by  one  man  to 
another,  on  a  mistake  either  of  fact  or  of  law,  or  by  deceit,  assump- 
sit for  money  had  and  received,  will  certainly  lie :  though  an  action 
will  not  lie  to  recover  back  money  paid  by  one  who  was  bound,  in 
point  of  honour  or  conscience  to  pay  another.  To  the  same  point 
are  the  following  authorities :  2  Com.  Cont.  35.  1  Salk.  22.  2  L. 
Ray.  1217.  2  BL  Rep.  825.  3  Burr.  1354.  Doug.  037.  2 
Johns.  157.  In  this  case  the  mistake  of  law  was  an  excusable  one ; 
for  the  Court  of  Common  Pleas  decided  that  H.  King.  Jr.  had  an 
absolute  property  in  this  legacy,  though  the  Supreme  Court  after- 
terwards  determined  the  contrary. 

0.  Payments  made  to  the  assignee,  after  the  death  of  the  assignor, 
cannot  operate  to  deprive  us  of  our  redress.  The  assignee  is  in  no 
better  conditon  than  the  assignor.  The  plaintiff  was  no  more  than 
the  donee  of  his  son.  It  is  alleged,  that  it  was  the  duty  of  the  de- 
fendants to  pay  the  assignee  of  H.  King,  Jr.,  and  then  resort  to  the 
administrators  of  H.  King,  Jr.  But  this  is  a  circuity  of  action,  to 
which  it  would  be  oppressive  to  compel  the  defendants  to  resort. 

7.  It  is  not  denied  that  the  opinion  of  the  court  was  right.  If 
a  more  detailed  charge  were  wished  by  the  plaintiffs,  it  should  have 
been  asked  for.  As  it  was  delivered,  however,  it  presented  the 
case  of  the  plaintiffs  in  a  strong  point  of  view.  There  was  no  con- 
sideration for  this  note  if  H.  King,  Jr.,  was  entitled  to  this  legacy 
only  for  life.     The  consideration  was  the  payment  of  the  legacy  : 


(a)  The  first  thirteen  sections  of  this  actof  14th  February,  1729 — 30,  were  repeated 
by  the  20th  section  of  the  Insolvent  Act,  passed  the  26th  March,  1814.     Pamph.  222. 


May,  1823.]  OF  PENNSYLVANIA.  417 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

but  only  400  pounds  of  the  1000  was  due.     The  legatee  was  not 
entitled  to  payment  without  giving  security  to  the  legatees  over. 

8.  Then  as  to  the  alleged  compromise,  and  the  effect  of  the  instru- 
ments executed  on  the  9th  June,  1814,  these  were  all  left  to  the 
jury  to  decide  upon,  and  they  were  told,  that  if  they  were  satisfied 
on  the  subject  they  should  find  for  the  plaintiffs. 

Buchanan  in  reply. 

1.  We  complain  that  the  charge Nwas  read  to  the  jury  as  evidence, 
and  not  by  way  of  explaining  the  judgment  of  the  Supreme  Court. 
The  opinion  of  the  Supreme  Court  had  not  been  read  by  the  plaintiff" 
as  evidence,  but  to  show  the  law.  The  object  of  the  defendants  in 
reading  the  charge  was,  to  make  an  impression  on  the  jury  in 
respect  to  matters  of  fact,  to  induce  them  to  believe  that  the  sole 
consideration  of  the  single  bills  was  the  payment  of  the  legacy. 
The  cases  cited  from  6  Binney,  are  conclusive.  As  to  reports  of 
adjudged  cases,  they  cannot  be  read  to  the  jury  as  evidence. 

2.  We  contend,  that  the  legacy  was  due  immediately  on  the  tes- 
tator's death.  The  testator  supposing  he  should  die  in  a  short 
time,  his  grandson  H.  King,  Jr.,  being  then  8  years  old,  fixed  for  the 
payment  of  the  first  instalment  the  1st  May,  1808,  when  the  lega- 
tee would  be  between  15  and  16  years  old,  because  money  would 
then  be  peculiarly  necessary  for  his  education.  The  last  payment 
would  in  that  case  have  become  due  just  before  the  legatee  came 
of  age.  But  as  the  testator  lived  till  H.  King,  Jr.,  was  21,  the  in- 
tent of  the  will  would  be  best  answered  by  the  legacy's  becoming 
payable  immediately  on  the  testator's  death.  At  any  rate,  this 
legacy  being  charged  on  land,  it  carried  interest. 

3.  On  this  point  there  are  five  questions.  1.  Can  money  paid 
under  mistake  of  law  be  recovered  back?  2.  Can  it  be  recovered 
under  the  pleadings  in  this  cause  ?  3.  Can  interest  be  recovered  ? 
4.  Can  money  paid  by  mistake  be  recovered  from  the  assignee  of  a 
bond  ?  5.  If  it  can,  are  the  defendants  the  proper  persons  to  rer 
cover  it  ? 

1.  As  to  400  pounds  of  the  1000  pounds  legacy,  the  defendants 
were  dealing  in  their  own  rights  :  because  as  two  of  the  legatees 
over,  they  were  entitled  to  two  fifths.  There  was  no  concealment 
or  mistake  of  facts,  the  only  question  then  is,  whether  a  mistake 
in  their  legal  rights  can  now  be  taken  advantage  of  by  them,  to  re- 
cover back  the  money  paid.  In  this  ancient  and  modern  authori- 
ties concur.  Ignorance  of  the  deed  may  excuse,  but  ignorance  of 
the  law  excuseth  not.  Doct.  fy  Stud.  79,  152,  251.  If  money  be 
paid  by  one  with  full  knowledge,  (or  with  full  means  of  knowledge 
in  his  power,)  of  all  the  circumstances,  it  cannot  be  recovered  back 
again  on  account  of  such  payment  having  been  made  under  an  ig- 
norance of  the  law.  2  Com.  Cont.  39.  The  defendants,  when  they 
paid,  were  well  aware  of  the  fact  that  H.  King,  Jr.,  was  dead :  and 
if  they  mistook  in  the  legal  consequence,  that  his  right  to  the  legacy 

vol.  ix.  3  G 


418  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

was  then  at  an  end,  it  is  a  mistake  of  which  they  took  the  risk, 
and  from  which  they  cannot  now  be  relieved.  2.  The  real 
plaintiffs  in  this  cause  are  the  administrators,  and  the  verdict  and 
judgment  are  against  them  as  administrators:  they  had  therefore 
a  right  to  reply  plene  administraverunt  to  an  attempt  to  establish 
an  over  payment,  by  which  they  would  be  rendered  liable.  _  If 
this  judgment  stands,  the  plaintiffs  are  estopped  from  alleging 
want  of  assets,  without  an  opportunity  to  plead  or  show  it.  The 
rule  of  court  support  our  argument  that  we  were  entitled  to  notice  : 
for  the  defendants  should  have  informed  the  plaintiffs  that  they 
meant  to  give  defalcation  in  evidence,  and  then  it  would  have  lain 
on  us  to  demand  a  specification  of  that  defalcation.  It  is  alleged 
that  this  defalcation  was  given  in  evidence  without  objection.  But 
that  is  not  the  case.  The  payments  which  were  the  subjects  of 
defalcation  were  good  evidence  in  another  point  of  view.  We  gave 
them  in  evidence  to  support  our  demand,  and  then  without  notice, 
the  defendants  in  their  address  to  the  jury  converted  this  evidence 
into  a  ground  for  recovering  a  sum  of  money  against  the  plaintiffs. 
Besides,  it  was  evidence  for  the  defendants  under  their  equitable 
defence.  But  an  equitable  defence  under  the  plea  of  payment,  is 
quite  different  from  defalcation  under  the  plea  of  payment.  The 
former  destroys  the  cause  of  action  :  the  latter  admits  it.  3.  Can 
interest  be  recovered  back  ?  The  court  charged  that  law  and  justice 
required  the  payment  of  interest,  whereas  this  matter  should  have 
been  left  to  the  jury.  In  consequence  of  this  charge,  the  jury  gave 
interest  from  the  time  the  money  was  paid.  The  most  they  could 
properly  allow,  was  interest  from  the  time  when  re-payment  was 
demanded.  4.  Can  money  paid  by  mistake  to  the  assignee  of  a 
single  bill  be  recovered  ?  We  contend  that  it  cannot.  It  must  be 
recollected  that  it  was  a  voluntary  payment,  and  one  of  the  bills 
was  given  up.  It  is  settled  law,  that  if  the  obligor  knowing  of  the 
assignment  makes  no  objection,  he  is  estopped  from  controverting 
the  consideration  of  the  bond.  But  the  case  of  payment  is  much 
stronger.  As  the  case  stands  before  the  court,  the  assignment  is 
to  be  taken  as  made  for  a  valuable  consideration.  5.  If  the  money 
be  recoverable,  are  the  defendants  the  proper  persons  to  recover 
;it?  The  defendants  were  the  guardians  of  H.  King,  Jr.,  and  had 
received  this  money  from  the  executors  of  Peter  Diehl  The  mo- 
ney belongs  to  the  five  children  of  the  testator :  what  right  then 
have  the  defendants  to  recover  the  whole  of  it,  when  their  title  ex- 
tends only  to  two  fifths  ?  But  in  truth,  there  was  no  right  in  any 
of  the  children.  H.  King,  Jr.,  had  a  right  to  the  possession  of  the 
principal  during  his  life,  and  the  bond  to  him  was  equal  to  pay- 
ment. If  a  man  excepts  a  bond  for  a  legacy  the  legacy  is  extinct, 
3  Bac.  Ab.  106.  Yelv.  38.  Nay,  H.  King,  Jr.,  had  released  the 
legacy  on  the  9th  June,  1814,  by  an  instrument  under  seal.  Whe- 
ther the  executors  might  have  demanded  security  before  they  made 
the   payment  is  another  question  :   they  certainly  were  justified  in 


May,  1823.]  OF  PENNSYLVANIA.  419 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

making  it  voluntarily ;  and  we  apprehend  they  might  have  been 
compelled  to  pay  it  without  security,  because  the  testator  did  not 
intend  that  security  should  be  given. 

4.  It  was  only  the  surplus  of  a  certain  fund,  and  not  of  the  per- 
sonal estate  in  general,  which  the  testator  gave  to  his  four  sons. 
The  money  charged  on  the  lands  devised  to  his  sons  was  a  differ- 
ent thing.  There  was  no  residuary  bequest  of  the  whole  personal 
estate. 

5.  The  objection  on  this  head  is,  that  the  charge  is  too  general: 
but  it  is  not  necessary  to  examine  it  further,  as  the  particular  ex- 
ception, which  we  say  the  court  ought  to  have  made,  namely,  that 
a  mistake  of  the  law  does  not  excuse,  has  been  already  discussed. 

6.  We  say  that  the  act  of  paying  part  to  the  assignee,  is  such  an 
admission  of  the  bond  as  estops  the  obligor  from  controverting  it 
It  is  full  as  strong  as  saying  to  the  assignee,  before  the  assignment, 
that  the  bond  is  good. 

7.  Our  reply  consisted  of  several  matters,  either  of  which  was 
decisive.  But  the  court  charged,  that  if  the  jury  believed  we  had 
made  good  all  those  matters,  they  should  find  for  us.  This  was 
error,  because  the  jury  were  led  to  think  they  might  find  against 
us,  though  they  were'  in  our  favour  on  some  decisive  point. 

8.  H.  King,  Jr.,  was  21  in  March,  1814.  The  settlement  with 
his  guardians  was  made  on  the  9th  June,  1814.  At  that  time  he 
was  entitled  to  one-sixth  of  900  pounds,  the  surplus  money  before 
mentioned,  if  our  construction  of  the  will  be  risrht :  and  he  was  en- 
titled  to  one-sixth  of  some  land  purchased  by  Peter  Diehl,  after 
the  making  of  the  will,  of  which  he  died  inestate.  Under  these 
circumstances,  he  executed  releases  on  the  9th  June,  1814,  and  re- 
ceived the  single  bills  of  his  guardians  for  certain  money,  for  part 
of  which  this  suit  was  brought.  The  release  was  not  only  of  the 
legacy,  but  of  other  rights.  The  whole  transaction  was  manifestly 
a  compromise  and  family  settlement.  It  was  evident  that  the  le- 
gacy of  1000  pounds  was  not  the  sole  consideration  of  the  single 
oills  given  by  the  defendants :  and  there  being  other  considerations 
moving  to  the  settlement,  the  parties  were  concluded  from  unra- 
velling it,  and  the  court  ought  so  to  have  charged. 

The  opinion  of  the  court  was  delivered  by 

Tilghman,  C.  J.  This  is  an  action  on  a  single  bill,  dated  the  9th 
June,  1814,  given  by  the  defendants,  Daniel  and  Nicholas  Diehl,  for 
the  sum  of  .£481  lis.  6d.,  payable  to  Henry  King,  Jr.,  or  order,  on 
the  1st  September,  1814,  with  interest  from  the  1st  May,  1814.  Hen- 
ry King,  Jr.,  assigned  this  obligation  to  his  father,  Henry  King,  the 
intestate.  It  was  alleged  by  the  defendants  that  the  consideration  of 
the  single  bill,  was,  legacy  bequeathed  to  the  said  H.  King,  Jr.,  by 
the  will  of  his  grandfather,  Peter  Diehl,  dated  the  6th  January, 
1801 .  The  bequest  of  this  legacy  was  in  the  words  following :  "  I 
also  give  and  bequeath  unto  Henry  King,  my  grandson  (the  issue  of 


420  SUPREME  COURT  [Lancaster, 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

my  daughter  Elizabeth,  deceased,  who  was  intermarried  with 
Henry  King,)  and  to  his  heirs  and  assigns,  the  sum  of  one  thou- 
sand pounds,  in  real  gold  and  silver  money  current  in  Pennsylva- 
nia, to  be  paid  to  him  in  two  hundred  pounds  yearly  payments,  the 
first  payment  whereof  to  be  made  in  1808,  and  from  thence  two 
hundred  pounds  successively,  until  the  whole  shall  be  fully  paid ; 
nevertheless  if  the  said  H  King  shall  die  unmarried  and  without 
issue,  that  then  and  in  such  case,  the  sum  aforesaid  so  bequeathed 
shall  be  equally  divided  to  and  among  all  my  children,  share  and 
share  alike."  Henry  King,  Jr.,  the  legatee,  died  unmarried  and 
without  issue,  after  he  had  assigned  the  said  single  bill  to  his  father, 
without  having  received  payment  of  any  part  of  the  said  legacy. 
He  was  21  years  of  age  in  the  year  1814,  and  died  in  1816.  The 
testator  died  in  1812.  The  defendants  gave  other  obligations  to 
H.  King,  Jr.,  which  he  also  assigned  to  his  father,  Henry,  to 
whom  considerable  payments  were  made  by  the  defendants  after 
the  death  of  his  son.  The  bonds  given  by  the  defendants  were 
to  the  amount  of  the  said  legacy,  of  1000  pounds.  On  the  trial  of 
the  cause  in  the  court  below,  exceptions  were  taken  by  the  counsel 
for  the  plaintiffs  to  the  opinion  of  the  court  on  several  points,  which 
I  shall  proceed  to  consider. 

1.  This  cause  was  tried  once  before,  and  the  judgment  of  the 
Court  of  Common  Pleas  was  reversed  by  this  court  on  a  writ  of  er- 
ror. On  the  last  trial,  the  opinion  of  this  court  delivered  on  the  re- 
versal of  the  first  judgment,  was  read  to  the  jury,  after  which  the 
counsel  for  the  plaintiff  offered  to  read  the  charge  of  the  President 
of  the  Court  of  Common  Pleas,  on  the  first  trial,  which  was  placed 
on  the  record.  To  this  the  counsel  for  the  defendant  objected,  but 
the  court  permitted  the  charge  to  be  read.  I  can  perceive  no  error 
in  the  admission  of  this  charge.  As  the  judgment  was  reversed 
for  error  in  the  charge,  there  was  no  impropriety  in  permitting  the 
jury  to  have  a  full  understanding  of  it ;  especially  as  the  court  had 
the  caution  to  tell  the  jury,  that  they  were  not  to  consider  the  charge 
as  evidence  of  any  fact  which  was  stated  in  it.  This  is  very  dif- 
ferent from  the  case  cited  by  the  plaintiff's  counsel,  where  it  was 
decided  by  this  court,  that  the  report  of  referees  which  had  been 
appealed  from,  could  not  be  read  in  evidence  to  the  jury  by  the 
party  in  whose  favour  the  report  was,  because,  after  the  entry  of 
the  appeal,  the  cause  was  taken  up  anew,  without  any  regard  to 
the  former  proceedings,  and  therefore  the  judgment  ought  not  to  be 
influenced  by  the  opinion  of  the -referees.  So  likewise,  this  case  is 
quite  different  from  another  cited  by  the  plaintiff's  counsel,  in  which 
it  was  decided,  that  a  verdict  which  had  been  set  aside  by  the  court, 
could  not  be  read  in  evidence  to  the  jury  on  the  second  trial.  There 
would  be  a  manifest  absurdity  in  offering  that  as  evidence  which  had 
been  annulled  by  the  court.  These  cases  would  have  applied,  if  in 
the  present  instance,  the  charge  of  the  court  on  the  first  trial,  had 
been  admitted  as  evidence  of  the  law  or  fact.     But,  as  I  understand 


- 


May,  1823.]  OF  PENNSYLVANIA.  421 

(King  and  another,  Administrators  of  King  v.  Diehl  and  another.) 

it,  the  opinion  of  this  court  which  referred  to  the  charge  having  been 
read,  the  charge  itself  was  afterwards  introduced  merely  as  an  ap- 
pendage to  the  opinion,  and  in  order  to  enable  the  jury  more  fully 
to  comprehend  it. 

2.  The  second  error  assigned,  is  in  the  opinion  of  the  court,  that 
interest  was  not  due  on  the  legacy  of  H.  King,  Jr.,  until  the 
end  of  one  year  from  the  death  of  the  testator.  This  legacy  was 
made  payable  in  yearly  instalments  of  200  pounds  each,  the  first  of 
which  was  in  the  year  1S08,  so  that  the  last  would  have  been  in 
1812.  But  it  so  happened,  that  the  testator  survived  all  the  periods 
of  payment,  so  that  it  was  impossible  the  legacy  should  be  paid 
at  the  time  appointed  by  the  will.  The  most  reasonable  construction, 
under  these  circumstances,  is,  that  it  should  be  considered  as  a  le- 
gacy payable  generally,  without  appointing  any  time  for  payment; 
in  which  case  it  would  have  been  payable  at  the  end  of  a  year  from 
the  death  of  the  testator.  Consequently  it  did  not  bear  interest  un- 
til that  time,  and  the  opinion  of  the  Court  of  Common  Pleas  was 
right. 

3.  The  third  error  assigned,  is  in  the  court's  opinion,  that  Henry 
King,  Jr.,  was  not  entitled  to  any  part  of  the  surplus  of  the  testa- 
tor's personal  estate,  which  remained  after  paying  all  the  debts 
and  legacies.  This  is  purely  a  question  of  intention.  The  testator 
created  a  fund  for  payment  of  his  debts,  <3Cc.  viz  :  all  his  outstand- 
ing debts,  several  sums  of  money  to  be  paid  by  his  sons,  to  whom 
he  had  devised  particular  parts  of  his  real  estate,  the  proceeds  of 
certain  lands  and  houses  which  he  ordered  to  be  sold  by  his  execu- 
tors, and  all  his  olher  personal  properly  ;  and  he  directed  that 
if  any  surplus  should  remain  after  the  payment  of  his  debts,  dCc.  it 
should  be  equally  divided  among  his  four  sons,  Peler,  Nicholas, 
Jacob,  and  Daniel.  There  is  nothing  given  to  his  grandson,  H. 
King,  Jr.,  except  the  legacy  of  £1000  ;  and  his  intention  appears 
clear,  that  all  his  personal  property  of  every  kind  which  remained 
after  payment  of  his  debts,  die.  should  go  to  the  four  sons  whom 
he  made  residuary  legatees  of  his  personal  estate.  I  agree  in  opi- 
nion, therefore,  with  the  Court  of  Common  Pleas,  that  H.  King, 
Jr.,  was  entitled  to  no  more  than  his  legacy  of  £1000. 

4.  5,  6.  The  fourth,  fifth,  and  sixth  errors,  will  be  most  con- 
veniently considered  as  one  subject.  After  the  death  of  Henry 
King,  Jr.,  several  payments  were  made  by  the  defendants  to  his 
assignee,  Henry  King,  amounting  in  the  whole  to  upwards  of 
$2000.  The  defendants  pleaded  payment,  with  leave  to  give  mis- 
take, vmnt  of  consideration,  and  special  matters  in  evidence. 
The  plaintiffs  did  not  call  for  a  specification  of  the  special  mat- 
ters, as  they  might  have  done  by  the  rule  of  court,  and  in  this 
manner  the  cause  went  to  trial.  On  the  trial,  the  defendants  in 
the  first  place  gave  evidence  of  want  of  consideration,  by  show- 
ing that  the  single  bill  on  which  the  action  was  founded,  was 
given  on    account  of   the  legacy  of   £1000  bequeathed  to  Henry 


422  SUPREME  COURT  [Lancaster, 

(King  and  mother,  Administrators  of  King  v.  Diehl  and  another.) 

King,  Jr.,  by  his  grandfather,  and  that  by  the  death  of  the  lega- 
tee, the  principal  of  the  legacy  went  over  to  other  persons.  All 
this  was  right  enough.  But  the  defendants  did  not  stop  there. 
They  gave  evidence  also,  of  all  the  payments  made  by  them  to 
H.  King  the  father,  after  the  death  of  the  son,  and  contended 
that  under  our  defalcation  act,  they  were  entitled  to  recover  of  the 
plaintiff  the  several  sums  which  they  had  paid,  with  interest  front 
the  time  of  payment,  and  in  this  the  court  agreed  with  them. 
As  this  cause  will  go  to  another  trial,  I  shall,  in  order  to  free  it  from 
all  embarrassment,  consider  three  questions  which  appear  to  be  ma- 
terial. First,  Under  the  pleadings  in  this  case,  could  the  defendants 
recover  any  thing  of  the  plaintiffs  under  our  defalcation  act  ?  Second- 
ly, Supposing  they  could,  would  they  be  entitled  to  interest  on  each 
of  the  payments  made  by  them,  from  the  time  of  payment  ?  Thirdly, 
Under  all  the  circumstances  of  this  case,  are  the  defendants  entitled 
to  recover  any  thing  of  the  plaintiffs  ?  First,  then,  as  to  defalcation. 
When  the  defendant  pleads  payment,  with  leave  to  give  want  of 
consideration,  and  the  special  matters  in  evidence,  he  can  only  give 
such  matters  in  evidence  as  show,  that  the  plaintiff  has  no  right  to 
recover.  He  may  defeat  the  plaintiff's  action,  but  there  must  stop. 
He  can  recover  nothing  against  the  plaintiff.  But  when  he  pleads 
payment,  with  leave  to  give  defalcation  in  evidence,  he  may  give 
evidence  of  matter  which  entitles  him  to  a  recovery  against  the  plain- 
tiff. The  plaintiff,  if  he  will,  has  a  right  under  the  rules  of  court,  to 
call  for  a  specification  of  the  defalcation ;  but  if  he  does  not  call  for 
it  in  due  time,  the  defendant  is  left  at  large  to  give  evidence  of 
any  matter  which  may  be  defalked  under  our  act  of  assembly. 
This  I  think  is  the  fair  construction  of  the  rule  of  court  which  has 
been  shown  to  us ;  and  therefore  the  defendant  had  no  right  under 
the  pleadings  in  this  action,  to  go  into  evidence  which  might  entitle 
him  to  a  recovery  against  the  plaintiff.  But  supposing  he  could  have 
gone  into  such  evidence,  was  the  court  right  in  charging  that  the  de- 
fendants were  entitled  to  interest  from  the  time  of  payment  ?  I 
think  that  matters  should  have  been  left  to  the  jury.  In  liquidated  debts, 
on  bond,  note,  &c.  interest  may  be  said  to  be  matter  of  law.  But  the 
present  case  was  very  peculiar.  The  defendants  made  a  voluntary 
payment  to  the  plaintiffs,  and  both  parties,  thought  that  the  payment 
was  proper.  Both  supposed,  that  the  thousand  pounds  legacy  was 
the  absolute  property  of  Henry  King,  Jr.  In  this  they  were  mis- 
taken. On  the  death  of  H.  King,  Jr.,  the  legacy  went  over  to  the 
children  of  the  testator.  But  the  plaintiffs  could  not  be  blamed  for 
receiving  what  they  thought  was  their  right,  and  what  the  defen- 
dants were  willing  to  pay.  Until  the  defendants  explained  the 
mistake  and  demanded  re-payment,  it  cannot  be  said  that  the  plain- 
tiffs unjustly  withheld  their  money,  and  should  therefore  be  sub- 
ject to  interest.  In  Brown  v.  Campbell,  1  Serg.  8?  Kawle,  176, 
this  court  was  of  opinion,  that  where  a  man  received  the  money 


May,  1823.]  OF  PENNSYLVANIA.  423 

(King  and  another,  Administrators  of  King  v.  King  and  another.) 

of  another,  supposing  it  to  be  his  own,  interest  should  not  be 
charged  against  him  until  the  money  were  demanded  and  payment 
refused  by  him.  The  present  is  a  case,  which,  under  all  its  cir- 
cumstances should  have  been  left  to  the  jury,  and  the  court  was 
wrong  in  charging  as  matter  of  law,  that  interest  was  recoverable 
from  the  time  of  payment.  But  were  the  defendants  entitled  to  re- 
cover in  any  form  of  action,  the  money  which  they  thus  volunta- 
rily paid  to  the  plaintiffs  ?  The  legacy  of  ,£1000  bequeathed  to 
H.  King,  Jr.,  belonged  to  him,  at  all  events,  during  his  life. 
Perhaps  the  executors  of  the  testator  might  have  insisted,  that 
he  should  give  security  for  payment  to  the  legatees  over,  in  case 
of  his  death,  unmarried  and  without  issue.  But  I  do  not  know 
that  they  were  qbliged  to  do  so.  In  such  a  case,  chancery  would 
see  that  security  was  given,  on  a  bill  filed  by  the  legatees  over,  and 
with  us,  who  have  no  chancery,  perhaps,  on  notice  from  such  le- 
gatees to  the  executor  not  to  pay  without  security,  it  might  be  his 
duty  to  act  accordingly.  I  think  that  on  receiving  such  notice, 
the  executors  ought  to  put  the  legatee  for  life  to  his  action,  and  the 
court  would  take  care  that  no  execution  should  issue  till  security 
given.  But  in  the  present  case,  so  far  from  giving  notice,  the 
parties  concerned  thought  that  H.  King,  Jr.,  had  an  absolute  pro- 
perty in  the  legacy.  The  executors,  therefore,  who  consented  that 
the  money  should  be  paid  to  Henry  King,  Jr.,  would  not  be  liable 
to  an  action  by  the  children  of  Peter  Diehl,  whose  remedy  must 
be  sought  against  H.  King,  Jr.,  or  his  assignee  who  received  the 
money.  I  take  for  granted  that  H.  King,  the  father,  received  an 
assignment  of  this  bond  from  his  son,  as  a  gift,  without  valuable 
consideration.  But  although  the  executors  would  not  be  liable  to 
an  action,  I  will  not  say  whether  they  might  not  have  supported 
an  action  to  recover  the  money  paid  on  account  of  the  legacy  as 
trustees  for  the  children  of  Peter  Diehl.  That,  however,  is  not 
the  present  case,  for  the  defendants  are  not  the  executors  of  Peter 
Diehl,  but  the  guardians  of  H.  King,  Jr.  Now,  what  right  have 
they  to  this  money?  It  belongs  not  to  them,  but  to  the  children 
of  Peter  Diehl.  The  executors  of  Peter  Diehl  came  to  an  agree- 
ment with  Henry  King,  Jr.,  in  consequence  of  which  the  defen- 
dants gave  their  bonds  to  King,  and  he  gave  the  executors  a  release 
for  his  legacy  of  <£1000.  The  defendants  paid  part  of  their  bonds, 
in  which  they  were  justified.  They  are  not  responsible  to  the 
children  of  Peter  Diehl  for  the  money  so  paid,  because  it  was  never 
in  their  hands  as  trustees  for  those  children.  But  the  estate  of  Henry 
King,  the  father,  is  accountable,  supposing  that  he  received  the 
assignment  of  the  bonds  as  a  gift  from  his  son.  There  is  no  reason 
therefore,  why  the  defendants  should  be  permitted  to  recover  back 
the  money  which  they  paid  voluntarily  and  lawfully.  Let  it  be  re- 
covered by  the  children  of  the  testator,  to  whom  it  belongs.  Upon 
the  whole,  I  am  of  opinion  that  the  judgment  should  be  reversed, 
and  a  venire  tie  novo  awarded. 


424  SUPREME  COURT  [Lancaster, 


[Lancaster,  May  19,  1823.] 

WILSON,  Executor  of  WILSON,  against  HAMILTON,  Admi- 
nistrator of  WILSON. 


A  former  recovery  in  an  action  for  money  had  and  received  against  an  executor  by 
the  widow  is  only  prima  facie  evidence  that  the  whole  amount  with  which  the  ex- 
ecutor then  charged  himself  in  the  settlements  of  his  accounts,  was  recovered:  the 
plaintiff  may  in  another  action  recover  moneys  received  since  the  bringing  of 
the  former  suit  though  contained  in  the  account,  if  they  were  not  before  re- 
covered. 

In  an  action  by  the  widow  for  her  share  of  the  surplus  moneys  arising  from  the  sale 
of  a  tract  of  Kind  ordered  by  the  testator  to  be  sold  and  uodi-sposed  of  by  will, 
evidence  is  not  admissible  of  an  action  of  dower  brought  by  her  to  recover  her 
dower  in  another  tract  belonging  to  the  testator,  which  is  the  subject  of  a  different 
devise. 

W  hen  a  testator  orders  land  to  be  sold  and  certain  legacies  to  be  paid  out  of  the  pro- 
ceeds,  tiie  surplus  money  after  the  payment  of  the  legacies  does  not  go  to  the  ex- 
ecutor, or  to  the  next  of  kin,  as  an  undisposed  of  residue  of  personal  estate,  but 
results  to  the  heir  at  law. 

If  the  widow  in  such  case  bring  an  action  of  dower  and  count  therein,  this  is  such  an 
election  as  would  bar  her  from  claiming  a  share  of  the  money  if  it  were  an  undis- 
posed  of  residue  of  personal  estate. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county. 

This  was  an  action  for  money  had  and  recieved,  brought  by  the 
plaintiff  below,  John  Hamilton,  administrator  cum  testamento  annexo 
of  Jane     Wilson,    deceased,    of    Lancaster    township,    Lancaster 
county.     Jane   Wilson  was  the   widow  of  John    Wilson,  the   tes- 
tator, who  died  in   October  1799,  and  the  defendant  was  his  son. 
By  his  last  will,  dated  the  31st  day  of  August,  in  the  year  1789, 
after  ordering  that  all  his  just  debts  and  funeral  charges  should  be 
paid  out  of  his  personal  estate,  he  devised  to  the  defendant  the  plan- 
tation he  then  lived  on,  together  with  all  the  mountain  and  timber 
land  lying  in   Chester  county,  in  fee  simple.     He  then  bequeathed 
to  his  daughter  Mary  Peters,  .£400,  to  be  paid  in  one  year  after 
his  decease,  with  deduction  of  what  she  had  already  received  :  to 
his   grandson,  John  Hamilton,  .£100,  when  he  arrived  at  15  :  to 
his    grandson,    John  Peters,    £100,    when   he    arrived    at  18 :   to 
Samuel  Bigart,  who  married  his  daughter  Nancy,  10  shillings  with- 
out any  deduction  :  to  his  two  grand-daughters,  Sarah  and  Marga- 
ret Bigart,  £50  each,  when  they  came  to  18  :     "  Item.  I  further 
will    and  allow  my  well  beloved  wife,  Jane   Wilson,  to  have  the 
profits  of  the  place  I   now  live  on,  which  is  in  Leacock  township, 
during  her  natural  life,  and  at  her  decease  to  fall  into  the  hands 
of  my 'son  John  Wilson.     Item.   It  is  my  will  that  the  land  where 
Robert  Knox  now  lives  on,  in  Leacock  township,  together  with  50 
acres  of  timber  land  lying  in  Lampeter  township,  be  sold  after  my 
decease,  and  £100  of  the  purchase  money  be  paid  to  my  daughter 
Margaret   Hamilton,    and    the   interest    of  £100  be    paid    to    my 


May,  1823.]  OF  PENNSYLVANIA.  425 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

daughter,  Mary  Peters,  and  at  her  death,  the  said  £100  to  be  di- 
vided equally  among  her  children."  He  then  appointed  his  son, 
the  defendant,  and  his  son-in-law,  Robert  Hamilton,  his  executjrs, 
and  revoked  all  former  wills.  Robert  Hamilton  renounced :  the 
defendant  afterwards  filed  an  inventory  of  the  personal  estate  of  the 
testator,  consisting  of  cash,  bonds,  notes,  and  book  accounts, 
amounting  to  the  sum  of  £3057  9s.  \\d.:  and  on  the  12th  Decem- 
ber, 1801,  he  settled  his  account  in  the  register's  office,  in  which  he 
charged  himself  with  the  amount  of  the  inventory,  and  after  claim- 
ing a  credit  for  the  payment  of  debts,  and  legacies,  and  a  com- 
mission, there  was  a  considerable  balance  of  personal  estate  due, 
which  was  stated  by  the  defendant  at  the  conclusion  of  the  account 
to  be  a  "  balance  in  the  hands  of  the  accountant  to  be  distributed 
according  to  the  will." 

Jane  Wilson,  on  the  26th  January,  1802,  brought  an  action  for 
money  had  and  received,  against  the  defendant,  in  the  Common 
Pleas  of  Lancaster  county,  (afterwards  removed  to  the  Circuit 
Court  under  the  system  then  existing,)  to  recover  her  distributive 
share,  namely,  one-third,  of  so  much  of  the  testator's  personal  es- 
tate as  remained  undisposed  of  by  will,  and  she  recovered  £621 
3s.  3rf.(a)  The  present  suit  was  instituted,  to  recover  her  portion  of 
the  said  personal  estate,  which  had  been  received  by  the  defendant 
since  the  26th  January,  1802.  The  defendant  pleaded  non  as- 
sumpsit, payment,  with  leave  to  give  the  special  matters  in  evi- 
dence, a  former  recovery  and  set  off,  and  issues  were  joined.  The 
plaintiff  claimed  one-third  of  the  amount  of  a  mortgage  given  to  the 
testator  by  John  and  George  Boyd,  on  which  satisfaction  was  ac- 
knowledged by  the  defendant,  on  the  2d  December,  1803,  one-third 
of  the  amount  paid  by  Jesse  Gilbert  as  a  purchaser  of  the  property 
sold  under  the  will,  and  paid  to  the  defendant,  after  the  26th  Jan- 
uary, 1802  ;  one  third  of  a  bond  given  by  John  Armstrong  to 
the  testator,  and  received  by  the  defendant :  none  of  which  were 
included  in  the  above  mentioned  inventory :  one-third  part  of  se- 
veral other  bonds  which  were  included  in  the  said  inventory :  and 
one-third  part  of  certain  other  bonds  of  Jacob  Szcope  and  Jacob 
Souder,  which  it  was-  doubtful,  whether  or  not  they  were  included 
in  the  inventory. 

On  the  trial,  the  inventory  and  administration  account  were  pro- 
duced, and  it  was  proved  that  they  were  given  in  evidence  on  the 
former  trial.  It  was  also  proved  by  the  defendant,  that  Jane  Wil- 
son brought  two  writs  of  dower  to  November  Term,  1800,  against 
the  tenants  in  possession,  one  against  Robert  Knox,  to  recover  her 
dower  out  of  the  lands  devised  by  the  testator  to  be  sold,  to  which 
the  defendant  appeared,  and  pleaded,  1.  A  devise  and  bequest  in 
lieu  and  satisfaction  of  dower,  entered  on  and  accepted  by  the  de- 
mandant.    2.  A  release  ;  on  which  issues  were  joined;  but  the  suit 

(a)  See  this  case.  Wilson  v.  Wilson,  3  Binn.  557. 
vol.  ix.  3  H 


42C>  SUPREME  COURT  [Lancaster, 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

abated  by  the  death  of  the  tenant.  The  other  writ  of  dower  was 
against  John  Scott,  to  recover  dower  out  of  the  land  devised  to 
Jane  Wilson  for  life. 

The  following  bills  of  exceptions  were  taken  by  the  defendant. 

First.  The  plaintiff  offered  in  evidence  the  depositions  of  Jacob 
Souder  and  Jacob  Mijer,  and  the  bonds  to  which  they  related:  the 
testimony  of  Robert  Hamilton,  concerning  his  bond  for  £100:  on 
which  £75  were  paid  in  December,  1808,  and  £71  19s.  6d.  in  Fe- 
bruary, 1809  :  the  testimony  relative  to  the  bond  of  William 
Evans  and  John  Smith,  on  which  300  dollars  were  paid  in  1806. 
The  defendant  objected,  and  offered  to  show  the  inventory  which 
included  the  said  bonds,  and  the  administration  account  of  the  de- 
fendant above  mentioned :  the  institution  of  the  suit  in  1802,  above 
stated,  in  which  the  inventory  and  account  were  given  in  evidence. 
But  the  court  overruled  the  objection,  and  admitted  the  evidence, 
whereupon  the  defendant  tendered  a  bill  of  exceptions. 

The  second  bill  of  exceptions  was  the  same  as  the  above,  to  the 
bond  and  receipt  of  James  Hamilton. 

Third  bill  of  exceptions.  After  the  plaintiff  had  concluded  his 
case,  the  defendant  offered  in  evidence,  the  record  of  a  writ  of 
dower  brought  by  Jane  Wilson  against  the  defendant  to  November 
Term,  1800,  removed  to  the  Circuit  Court,  to  recover  her  dower 
out  of  her  husband's  real  estate,  to  show  that  she  had  made  her 
election  to  claim  in  opposition  to  the  will.  This  evidence,  being 
objected  to  by  the  plaintiff,  was  rejected  by  the  court,  who  sealed 
another  bill  of  exceptions. 

Several  points  were  submitted  to  the  court  below  by  the  plaintiff 
and  defendant:  and  the  court  charged  that  the  plaintiff  in  this  ac- 
tion was  entitled  to  recover  any  moneys  received  by  the  defendant, 
since  the  institution  of  the  former  suit,  which  the  jury  were  satis- 
fied were  not  then  recovered ;  that  as  to  the  residue  of  the  pur- 
chase money  of  property  sold  to  Jesse  Gilbert,  the*  writ  and  count 
in  dower  against  Robert  Knox,  were  evidence  to  show  an  election 
by  the  widow  to  take  her  dower,  but  were  not  conclusive :  and  the 
writ  of  dower  against  Scott  to  recover  one-third  of  the  lands  de- 
vised to  the  widow  for  life  had  no  effect  to  bar  her  claim  in  this 
suit. 

Rogers  and  Hopkins,  for  the  plaintiffs  in  error. 

1.  It  must  be  taken  for  granted,  that  Jane  Wilson  recovered  in 
her  former  action,  her  share  of  all  the  debts  included  in  the  inven- 
tory of  her  husband's  estate,  and  she  therefore  cannot  now  recover 
any  part  of  those  debts.  The  former  suit  was  for  the  recovery  of  all 
to  "which  she  was  entitled  from  the  estate.  In  that  suit  the  inven- 
tory was  given  in  evidence  by  her,  in  which  the  executor  was 
charged  with  these  debts.  Her  demand  formed  one  entire  cause  of 
action,  not  capable  of  being  severed,  and  as  the  executor  had 
charged  himself  with  the  whole,  her  right  to  recover  the  whole  could 
not  be  controverted  and  cannot  now  be  disputed.  She  might  have 
recovered  it  then,  and  cannot  have  the  chance  of  recovering  it 


May,  1823.]  OF  PENNSYLVANIA.  421 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

again.     Even  a  court  of  equity  will  not  relieve  a  man  who  has  lost 
his  opportunity  at  law. 

2.  The  court  below  erred  in  rejecting  the  evidence  of  a  recovery 
by  Jane  Wilson,  against  the  defendant  in  an  action  of  dower.  This 
evidence  went  to  show  that  she  had  recovered  against  the  will:  and 
yet  now  she  is  suing  under  the  will.  They  cited  Wen.  off.  Ex. 
4,  5.  Toller,  75.  Rop.  Leg.  219.  3  Bac.  ab.  27,  Godb.  762. 
My,  12.  2  Dull.  268. 

3.  The  writ  of  dower  against  Knox,  who  lived  on  the  land  de- 
vised by  the  will  to  be  sold,  and  counting  therein,  were  a  conclu- 
sive election  by  the  widow  to  take  her  dower.  It  was  an  election 
in  a  court  of  justice,  and  cannot  be  retracted.  It  is  of  record, 
and  therefore  differs  from  elections  in  pais.  Co.  Lit.  145,  a,  is 
express  that  if  the  wife  bring  a  writ  of  dower  at  the  common  law 
and  count,  albeit  she  recover  not,  yet  she  shall  never  after  recover 
her  dower  ex  assensu  fratris.  So  an  avowry  in  a  court  of 
record,  which  is  in  the  nature  of  an  action  is  a  determination 
of  a  party's  election  before  any  judgment  given,  lb.  145,  6* 
On  the  same  ground  an  action  by  a  widow  for  an  annuity  de- 
vised to  her  by  her  husband,  and  recovery,  are  a  bar  to  her  ac- 
tion of  dower.  10  Johns.  30.  And  on  the  other  hand  a  recovery 
in  dower  is  a  bar  to  a  testamentary  provision  in  lieu  of  dower.  Cro. 
Eliz.  128.  It  is  a  principle  that  one  shall  not  claim  under  a  will 
■without  giving  full  effect  to  it,  in  every  respect,  so  far  as  such  per- 
son is  concerned.  One  who  opposes  it  in  part  must  reject  it  in  the 
whole.  He  cannot  take  a  part  and  reject  in  part.  Rop.  on  Leg. 
212.  Cas.  Temp.  Talb.  182.  2  Atk.  44.  Pore,  on  Devises,  469. 
And  when  an  election  is  made  by  the  party,  it  is  binding  on  his 
representatives.  1  Mass.  Rep.  211.  3  Har.  §■  MHen.  95.  The 
suit  by  the  widow  against  Knox  to  recover  dower  in  the  lands  di- 
rected by  the  will  to  be  sold,  was  in  direct  opposition  to  the  will : 
and  though  it  did  not  prevent  the  sale  was  calculated  to  injure  it. 

Buchanan,  contra. 

1.  In  an  action  for  money  had  and  received,  the  plaintiff  can 
only  recover  the  amount  of  the  money  actually  received  by  the  de- 
fendant. Ralston  v.  Bell,  3  Dall.  242.  In  conformity  with  this 
principle,  the  plaintiff  was  precluded  in  the  former  suit,  as  appears 
by  the  notes  of  Judge  Smith,  who  tried  the  cause,  from  recovering 
any  money  which  had  not  been  actually  received  by  the  defendant. 
The  inventory  and  administration  account,  given  in  evidence  in  that 
suit,  were  not  conclusive  on  the  defendant :  he  was  at  liberty  to 
show,  and  did  show,  on  the  trial,  that  he  had  not  received  all  the 
debts  with  which  he  had  charged  himself.  Lautermilch  v.  Kneagy, 
3  Serg.  Sf  Rawle,  202,  and  Kohr  v.  Fedderhaff,  4  Serg.  fy  Rawle, 
248,  are  authorities  to  show,  that  a  settlement  in  the  Orphans' 
Court  is  not  conclusive.  As  the  defendant  first  prevailed  against 
the  plaintiff  on  the  ground  that  a  settlement  in  the  Orphans'  Court 
was  not  conclusive,  it  would  be  strange  if  he  could  succeed  now 
on  the  ground  that  it  was  conclusive. 


428 


SUPREME  COURT 


[Lancaster, 


(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

2.  The  error  alleged  on  this  point  proceeds  on  taking  it  for  grant- 
ed, that  the  suit  by  the  widow  against  John  Wilson  for  dower  in 
the  lands  devised  to  her  for  life  was  in  opposition  to  the  will.  But 
this  court  has  decided,  that  the  writ  of  dower  against  John  Wilson 
was  not  evidence,  because  it  was  not  in  contradiction  to  the  will. 
The  widow  is  not  put  to  her  election  to  take  under  the  will  of  her 
husband,  or  her  dower,  except  by  express  declaration,  or  necessary 
inference  from  the  inconsistency  of  her  claim  with  „the  dispositions 
of  the  will.      Webb  v.  Evans,  1  Binn.  572. 

3.  This  is  the  great  point  in  this  cause.  Did  the  writ  of  dower 
brought  by  Jane  Wilson  against  Knox,  prove  an  irrevocable  elec- 
tion to  take  her  dower  in  that  land,  and  not  her  share  of  the  money 
for  which  it  should  be  sold  ?  I  grant  it  was  evidence  of  election ; 
but  unless  it  was  conclusive  evidence,  the  court  below  was  right  in 
their  charge.  It  was  a  mixed  question  composed  of  law  and  fact, 
which  the  court  was  not  bound  to  decide  but  left  purposely  to  the 
jury.  It  might  have  been  done  under  a  misapprehension  of  her 
rights :  and  in  such  case  chancery  would  relieve  her ;  for  there  must 
be  a  knowledge  of  a  party's  right,  to  make  a  binding  election.  3 
Johns.  Ch.  422.  The  writ  of  dower  was  sued  out  before  the  sale 
made  by  the  executors :  if  it  had  been  brought  after  that  sale,  the 
case  would  have  been  very  different.  But  no  harm  was  done ;  she 
did  not  interfere  with  the  sale  nor  molest  the  purchaser.  She  might 
even  have  recovered  her  dower,  and  yet  afterwards  given  up  her 
claim  to  enable  the  executors  to  sell.  She  had  no  means  of  com- 
pelling them  to  sell.  She  was  entitled  to  one-third  of  the  money 
arising  from  the  sale  absolutely,  inasmuch  as  the  will  converted  the 
land  into  personalty.  How  can  it  be  supposed  that  she  would  elect 
to  take  a  life  estate  in  one-third  in  preference  to  the  absolute  pro- 
perty ?  In.  the  truth,  she  never  could  have  recovered  in  action  of 
dower :  because  Knox  was  a  tenant  for  years,  and  dower  lies  only 
remedy  against  the  tenant  of  the  freehold.  2  Sound.  43,  note  1. 

In  reply,  it  was  stated,  that  there  was  no  weight  in  the  argu- 
ment that  Knox  was  only  a  tenant  for  years,  because  he  did  not 
plead  in  abatement  that  he. was  not  tenant  of  the  freehold,  but  in 
bar  of  the  action,  namely,  that  the  testator  had  devised  to  the  de- 
mandant other  land  in  lieu  of  dower. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  That  the  executor,  in  this  state,  has  always  been 
considered  as  a  trustee  of  the  next  of  kin,  as  to  all  the  residue  of 
personal  property  undisposed  of  by  the  testator,  was  settled  between 
these  very  parties,  and  a  recovery  had  by  the  testatrix  in  her  life 
time. 

To  this  second  action,  the  defendant  below  has  interposed,  first 
the  plea  of  former  recovery  ;  secondly,  an  election  by  the  plaintiff 
not  to  claim  under  the  will,  but  her  dower  at  the  common  law, 
established,  as  he  contends,  by  two  writs  of  dower  ;  one  against 
John  Wilson,  the  other  against  Robert  Knox,  the  tenant  of  testator, 


May,  1823.]  OF  PENNSYLVANIA.  429 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

living  on  the  tract  devised  to  be  sold,  and  which  was  sold,  and 
one-third  of  the  purchase  money  of  which  she  claims  in  this  ac- 
tion, as  the  residue  undisposed  of,  of  the  testator's  personal  estate, 
as  his  widow. 

The  plea  of  a  former  recovery  is  composed  partly  of  law  and 
fact,  is  a  mixed  question  of  law  and  fact,  and  the  issue  is  always 
to  the  country. 

This  was  an  action  for  money  had  and  received  to  and  for  the 
use  of  Jane  Wilson,  against  the  defendant  as  her  trustee.  It  is  on 
the  principle  of  trust  alone,  that  the  action  can  be  maintained.  It 
is  in  the  nature  of  a  bill  in  equity.  The  declaration  states  no  spe- 
cific, single  cause  of  action,  money  received  from  a  particular 
person  for  the  use  of  the  plaintiff;  and  in  this  form  of  action,  a 
plaintiff  can  only  recover  the  money  which  the  defendant  has  ac- 
tually received.  It  was,  therefore,  competent  to  the  plaintiff  to 
show  what  money  she  really  did  recover,  and  on  what  account; 
and  to  show,  that  she  did  not  and  could  not  recover  certain  sums 
of  money  which  she  sought  to  recover  in  this  action,  because  it 
was  not  one  entire  transaction  or  cause  of  action,  incapable  of 
separation,  and  which  the  plaintiff  could  not  split  up  into  several 
actions,  but  separate  and  distinct  causes  in  their  nature;  and  even 
in  the  case  of  an  entire  contract,  where  action  cannot  be  brought 
till  all  the  days  of  payment  are  past ;  yet  where  the  action  sounds 
in  damages,  as  in  the  present  case,  and  not  debt,  the  plaintiff  may 
sue  in  order  to  recover  damages  for  every  default  made  in  pay- 
ment. Ashford  v.  Hand,  Andrews,  370.  So,  if  money  is  awarded 
to  be  paid  at  different  times,  assumpsit  will  lie  on  the  award  for 
each  sum  as  it  becomes  due.  Cooke  v.  Whorwood,  2  Saund.  338. 
It  is  unreasonable  that  an  action  can  be  brought  for  money  not  due, 
and  ungracious  to  object,  that  because  you  have  recovered  money 
which  was  really  due  at  the  time  you  sued  and  recovered,  that  you 
shall  not  recover  money  from  me  which  I  did  not  then  owe,  be- 
cause I  had  not  received  it,  but  which  I  have  since  received  as 
your  trustee.  To  permit  a  plaintiff  to  prosecute  in  a  second  action, 
what  was  included  in  and  might  have  been  recovered  in  the  first 
action,  would  be  unjust  and  against  the  policy  of  the  law,  because 
it  would  harass  a  defendant  and  expose  him  to  double  costs.  This 
is  the  doctrine  in  Hesse,  Executor  of  Hesse,  v.  Heebie,  6  Serg.  fy  Rawle, 
57.  If  he  does  not  bring  it  forward  on  the  first  trial,  he  is  sup- 
posed to  have  abandoned  it,  and  has  no  cause  of  complaint.  But 
where  he  does  not  specifically  include  it  in  his  first  action,  and 
could  not  recover  it  if  he  did,  that  he  should  be  barred  from  ever 
recovering  it,  would  be  most  aggravated  injustice. 

The  former  recovery  was  only  prima  facie,  evidence  that  de- 
mands were  inquired  into,  but  not  conclusive.  The  issue  in  the 
plea  is,  whether  the  damages  demanded  in  this  action  were  reco- 
vered in  the  former  one,  and  the  plaintiff  ought  clearly  to  show, 
that  this  same  cause  of  action  had  not  been  litigated  and  decided 


430  SUPREME  COURT  [Lancaster, 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

in  that  action.  The  evidence  was  competent  to  show  that  it  had 
not  been  recovered  in  that  action,  because  the  defendants  showed 
it  had  not  been  actually  received  by  the  executors. 

There  was,  therefore,  no  error  either  in  the  admission  of  this 
evidence,  or  in  the  instruction  given  to  the  jury  on  the  plea  of  for- 
mer recovery.  It  was  for  the  jury  to  decide  whether  it  was  reco- 
vered or  not. 

On  the  ground  of  election,  the  case  presents  one  question  of  some 
difficulty.  If  this  is  undisposed  of  residue  of  the  personal  estate, 
the  question  of  election,  strictly,  cannot  well  arise  ;  for  the  defen- 
dant claims  as  if  the  testator  quoad  this  residue,  had  died  intestate. 
She  does  not  claim  this  under  the  will,  or  ask  it  in  opposition  to 
the  will,  but  because  there  is  no  will  disposing  of  it.  But  it  has 
some  resemblance  to  election,  so  far  as  respects  the  land  sold  to 
Jesse  Gilbert,  which  she  claims  as  personal  estate.  Now  she  shall 
not  be  allowed  for  her  benefit  to  consider  it  as  both  real  and  per- 
sonal estate,  and  to  claim  distinct  interests  in  two  qualities.  There 
is  nothing  equitable  in  this.  Her  claim  of  it  as  personal  estate  is 
equity :  at  law,  the  executors  take  the  surplus.  But  it  is  held,  that 
in  Pennsylvania,  though  the  executor  takes  it,  he  takes  it  as  a 
trustee  for  the  next  of  kin,  and  she  can  only  claim  it  passing  to 
him  as  personal  estate.  Her  claim  of  it  as  land,  is  equivalent  to 
a  declaration  that  she  will  abide  by  her  legal  right.  She  disowns 
the  trust,  and  in  such  case  the  writ  of  dower  and  count  in  dower 
are  a  conclusive  election  made  by  her,  of  the  state  in  which  she 
considers  this  property  and  claims  it. 

It  is  a  different  question  from  taking  in  opposition  to  a  will. 
She  has  two  interests  arising  out  of  the  same  subject,  the  land. 
She  may  use  it  either  way,  but  not  both  ways ;  and  to  one  entire 
act.  Here  she  had  two  ways  arising  out  of  her  interest.  She 
cannot  work  it  both  ways.  Hob.  159, 160.  This  action  of  dower 
was  a  disclaimer  in  a  Court  of  Record  {Butler  and  Bakers  Case, 
3  Co.  26.  b.)  of  all  claim  to  this  as  personal  estate.  An  election  is 
made  by  real  action  in  a  Court  of  Record,  claiming  as  realty.  She 
asserts  her  legal  right  to  this  as  real  property,  by  a  real  action.  She, 
therefore,  by  necessary  consequence,  disclaims  all  equitable  right 
to  it,  as  personal  estate,  by  a  personal,  equitable  action,  as  this  is. 

In  the  Appeal  of  John  Anderson,  Administrator  of  Christopher 
Griffith,  4  Yeates,  35,  heir  at  law  claiming  an  interest  in  intestate's 
estate  as  personal  in  the  Orphans'  Court,  was  estopped  from  assert- 
ing his  right  to  the  land.  One  of  the  reasons  why  estoppels  are 
allowed,  is,  that  what  a  man  hath  once  asserted  in  a  court  of  jus- 
tice is  presumed  true,  and  he  ought  not  to  be  permitted  to  contra- 
dict it. 

But  there  is  another  view  of  this  subject,  quite  satisfactory  to 
my  mind,  which  has  not  been  adverted  to  ;  and  that  is,  that  there 
is  no  resulting  trust  to  the  next  of  kin  of  the  testator,  of  the  sur- 
plus of  the  proceeds  of  the  sale  of  land,  after  satisfying  the  specific 


May,  1823.]  OF  PENNSYLVANIA.  431 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

purposes,  but  the  trust  is  for  the  heirs.  "  It  is  my  will,  that 
the  land  whereon  Robert  Knox  lives,  in  Leacock  township,  to- 
gether with  fifty  acres  of  land  lying  in  Lampeter  township,  be 
sold  after  my  decease,  and  jGIOO  of  the  purchase  money  to  be  paid 
to  my  daughter,  Margaret  Hamilton,  and  the  interest  of  <£100  to 
be  paid  to  my  daughter  Mary ;  and  at  her  decease,  the  said  <£100 
to  be  divided  equally  among  her  children."  The  heir  takes  the 
resulting  trust  of  the  residue,  after  satisfying  the  charges.  A 
difficulty  sometimes  arose,  in  what  quality  he  took,  whether  real 
or  personal  estate.  When  the  object  of  the  sale  has  ceased,  and 
no  further  disposition  is  to  be  made,  the  heir  takes  a  resulting  trust. 
6  Johns.  81.  The  appointment  of  an  executor  vests  the  whole 
personal  property  in  the  executor.  The  legal  title  is  in  him  :  he  is 
as  much  proprietor  as  the  testator  was  in  his  life  time.  Not  so  of 
lands  ;  for  what  is  not  devised,  vests  in  the  heir :  the  executor  has 
neither  interest  nor  power,  but  what  is  specifically  given  to  him : 
for  every  devise  of  land  is,  from  necessity,  specific.  There  must 
be  a  substantive  and  independent  intention  to  turn  the  real  estate, 
at  all  events,  into  personal ;  not  where  there  is  only  a  specific 
purpose  and  no  conversion  except  to  answer  that  purpose.  The 
heir  takes  all  that  which  is  not  for  a  defined  and  specific  purpose, 
given  by  the  will.  There  is  no  doubt  but  that  the  heir,  paying  the 
charges  on  the  land,  could  prevent  a  sale ;  and  there  is  no  spark  of 
equity  between  the  heir  and  next  of  kin.  There  cannot  be  a  gift 
without  a  donee.  Plain  words  of  gift  are  necessary  to  disinherit 
an  heir  at  law. 

A  devise  of  real  estate  to  be  sold,  the  object  being  a  provision 
for  legacies,  and  not  an  absolute  conversion  to  all  intents,  the  heir 
at  law  takes  the  surplus,  which  would  not  be  affected  by  the  ap- 
pointment of  a  residuary  executor.  Here  it  is  not  converted  out 
and  out,  nor  the  surplus  directed  to  be  disposed  of;  but  is  a  surplus 
fund  resulting  to  some  one  ;  and  I  do  not  see  how  the  personal  re- 
presentative can  ever  get  at  that,  which  was  not  personal  at  the 
death  of  the  testator,  but  by  express  direction  ;  and  there  being 
no  such  direction,  the  heir  at  law  is  entitled  to  it  as  a  resulting 
fund,  because  it  was  real  estate — land — at  the  devisor's  death,  and 
this  part  of  if  an  interest  in  the  real  estate — land — not  effectually  de- 
vised ;  and  which,  therefore,  goes  to  the  heir.  It  is  for  this  reason, 
that  the  produce  of  an  estate,  which  the  devisor  directs  to  be  sold, 
can  never  be,  strictly,  part  of  his  general,  personal  property. 
Every  person  taking  an  interest  in  the  produce  of  land  directed 
to  be  sold,  is  in  truth  a  devisee,  and  not  a  legatee.  But  here  is 
neither  legatee  nor  devisee,  nor  any  disposition  of  the  surplus  as 
money.  Whatever  interest  in  a  profit  out  of  real  estate  is  undis- 
posed of  descends  to  the  heir.      TalboVs  Cases,  43. 

Where  there  is  a  devise  to  trustees  to  sell  to  pay  debts,  &c.  and 
no  disposition  is  made  of  the  residue,  the  benefit  of  the  residue  de- 
scends to  the  heir  at  law;  because  the  devise  is  taken  to  be  simply 


432  SUPREME  COURT  [Lancaster, 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

a  charge,  and  the  estate  so  far  remains  real  notwithstanding.  But 
in  case  of  personal  estate,  the  law  vests  the  legal  title  in  the  execu- 
tor, of  all  undisposed  of,  as  it  does  of  all  the  real  estate  in  the  heir 
undisposed  of  by  the  will. 

It  is  not  necessary  there  should  be  an  expression  in  favour  of 
the  heir  to  enable  him  to  take  ;  but  it  is  necessary  there  should  be 
a  clear  expression  or  manifest  implication,  that  the  testator  intended 
to  give  it  to  some  one  else,  to  take  it  from  the  heir.  And  if  it  is 
doubtful  what  the  intention  was,  or  if  there  were  no  intention  about 
it,  the  heir  must  take.  If  it  was  a  measuring  cast  between  the  heir 
and  next  of  kin,  the  heir  must  take. 

Whenever  the  executor  takes  a  residue  of  personal  estate,  and 
is  made  a  trustee  for  the  next  of  kin,  the  trust  is  equally  for  the 
widow  ;  because  then  it  goes  under  the  intestate  law,  as  part  of  the 
personal  estate  undisposed  of.  But  the  produce  of  land  undisposed 
of,  goes  as  the  land  itself  would.  But  under  a  bequest  of  the  re- 
sidue of  personal  estate  to  the  next  of  kin,  without  more,  the  widow 
does  not  take.  If  this  widow  takes  this  as  a  personal  estate,  she 
does  not  take  it  because  of  the  intestacy  of  her  husband,  but  must 
take  it  because  it  was  given  to  her  by  the  will.  She  cannot  take 
it  as  if  her  husband  had  died  intestate,  because,  in  that  event,  she 
is  entitled  to  dower  alone.  She  cannot  take  it  under  the  will,  be- 
cause it  is  not  given  to  her.  The  claim  of  the  widow,  if  support- 
ed, would  defeat  the  intention  of  the  testator,  and  it  is  difficult  to 
maintain  the  construction,  that  this  estate  was  converted,  out  and 
out,  by  the  testator,  into  personal  estate,  and  was  such  at  his  death  ; 
and  impossible  to  support  the  position,  that  he  devised  her  one- 
third  of  the  surplus  of  this  land  in  fee  simple,  after  discharge  of  le- 
gacies. For  that  would  be  the  consequence ;  and  if  no  sale  had 
been  made,  she  then  could  have  maintained  an  ejectment  for  one- 
third  of  the  land :  than  which  nothing  could  be  more  contrary  to 
every  principle  both  of  equity  and  law,  or  more  repugnant  to  the 
intention  of  the  testator. 

The  court  are  of  opinion,  that  the  surplus  money  arising  from 
the  sale  of  the  land,  after  payment  of  the  legacies  charged  specially 
thereon,  went  as  a  resulting  fund  to  the  heir;  and  would  not  go, 
either  to  the  executor  or  next  of  kin,  as  an  undisposed  of  residue 
of  personal  estate,  and  that  the  plaintiff  would  not  be  entitled. 
And  that  if  it  were  undisposed  residue  of  personal  estate,  having 
made  her  election  by  action  in  a  Court  of  Record  to  claim  it  as 
real,  was  a  disclaimer  of  any  equitable  interest  in  it  as  personal 
estate.  The  widow  having  annulled  the  will  as  respected  this 
tract,  by  judicial  process,  her  election  by  this  repudiation  was  made, 
to  take  this  as  real  estate.  She  reprobated  all  claim  to  it  as  per- 
sonal ;  denied  its  conversion  into  personal.  When  she,  in  a  Court 
of  Record,  prosecuted  her  right  to  this  as  real,  she  elected  to  repro- 
bate the  will,  in  order  to  establish  her  claim  to  this  as  real.  She 
could  not,  afterwards,  approbate  it,  so  as  again  to  make  it  personal. 


May,  1823.]  OF  PENNSYLVANIA.  433 

(Wilson,  Executor  of  Wilson,  v.  Hamilton,  Administrator  of  Wilson.) 

The  record  in  the  action  of  dower  against  John  Wilson,  was 
properly  rejected.  It  was  immaterial;  for  whether  she  recovered 
dower,  or  sued  for  it,  from  the  land  devised  to  John  or  not,  could 
have  no  operation  on  the  claim  she  set  up  in  the  action  for  the 
produce  of  the  sale  of  the  lands  directed  by  the  executor  to  be  sold  ; 
nor  on  the  undisposed  residue  of  that  which  was  purely  personal 
estate  at  the  testator's  death,  to  which  she  has  an  unquestioned 
right. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


VOL.  ix.  31 


434 


SUPREME  COURT 


[Lancaster, 


[Lancaster,  May  19,  1823.] 

STOEVER  against  STOEVER  for  the  use  of  his  Creditors. 


IN  ERROR. 

A  devise  of  a  lot  with  the  houses  upon  it  to  A.  as  his  own  property,  and  of  certain 
specific  legacies  of  which  he  was  not  to  be  master  till  his  full  age,  and  in  case  he 
died  before  lawful  age,  or  after  such  age,  without  issue,  then  all  and|-ungular  the 
above  legacies,  or  what  shall  be  left  thereof,  to  be  sold  and  divided  among  other 
children,  carries  a  fee  simple  in  the  lot  and  house. 

A  deed  accompanied  with  a  written  agreement  between  the  parties  of  the  same  date, 
reciting  that  the  deed  was  made  for  a  certain  sum  due  from  the  grantor  to  the 
grantee,  or  for  securing  the  payment  thereof,  and  stipulating  that  the  grantee  will 
not  sell  or  mortgage  the  property  for  three  years  and  three  months,  and  will  then 
deliver  up  the  deed  to  the  grantor  if  the  money  is  repaid  by  instalments  within 
that  time,  and  providing  that  if  either  party  die,  or  the  premises  must  be  sold  with- 
in  that  time,  and  more  than  the  sum  due,  and  interest  are  obtained,  the  sur- 
plus shall  go  to  the  grantor,  but  if  less,  the  grantor  shall  supply  the  deficiency — 
is  a  mortgage. 

If,  however,  the  money  is  equal  to  the  value  of  the  premises,  and  the  time  fixed 
elapses  without  payment,  and  the  grantee  brings  ejectment,  on  which  a  judgment 
is  entered  by  agreement,  stipulating,  that  in  case  of  repayment  by  a  certain  day, 
the  property  shall  remain  in  the  defendant,  otherwise  a  writ  of  habere  facias  pos- 
sessionem to  issue,  and  the  rents  of  the  interval  to  be  paid  to  the  plaintiff,  and  de- 
fault of  payment  being  made  a  writ  issue,  on  which  possession  is  delivered  to  the 
grantee,  who  retains  it  and  makes  improvements,  the  grantor  acquiescing  by  si- 
Jence,  and  becoming  insolvent  and  making  no  return  of  the  premises  as  his 
property,  the  grantee  is  entitled  to  the  premises. 

But  parol  evidence  is  admissible  on  behalf  of  the  plaintiff  suing  for  the  use  of  his 
creditors,  to  show  a  prolongation  of  the  time  of  redemption,  and  to  rebut  the  pre- 
sumption of  acquiescence,  by  the  declarations  of  the  grantee,  that  he  intended 
after  a  sale  to  pay  the  surplus  to  ihe  creditors  or  children  of  the  grantor. 

Laying  a  consideration  executed  in  assumpsit,  without  previous  request,  is  bad  on 
demurrer,  but  is  cured  by  verdict. 

An  insolvent  debtor,  who  has  assigned  his  property,  cannot  sue  for  a  cause  of  action 
existing  at  the  lime  of  the  assignment,  in  his  own  name,  though  empowered  by 
his  creditors,  and  though  the  asbignecs  have  not  acted. 

On  a  mortgage  of  land,  with  authority  to  the  mortgagee  to  sell  after  a  certain  time, 
and  to  pay  the  surplus*,  if  any,  after  satisfying  the  debt,  to  the  mortgagor,  if  there 
is  no  covenant  or  special  agreement  to  pay,  indebitatis  assumpsit  lies  for  money 
had  and  received,  for  a  surplus  arising  from  sale. 

A  trustee  of  an  insolvent  debtor,  who  releases  all  his  claims  as  creditor  to  the  insol- 
vent, is  a  good  witness  on  his  behalf  in  a  suit  in  the  insolvent's  name,  for  the  use 
of  his  creditors. 

If  the  question  whether  mortgage  or  not  depends  solely  on  writings,  parol  evidence 
is  inadmissible,  but  if  it  be  admitted,  and  the  question  depends  partly  on  that  evi- 
dence, it  should  be  left  to  the  jury  whether  it  was  a  mortgage  or  not. 


Error  to  the  Court  of  Common  Pleas  of  Lebanon  county. 

Assumpsit  by  the  plaintiff  below,  Frederick  Stoever,  as  well 
for  himself  as  his  creditors,  against  Tobias  Stoever,  the  defendant 
below.  The  declaration  stated  in  the  first  count,  that  on  the  1st 
January,  1818,  in  consideration  that  the  plaintiff  and  his  wife  had, 
before  that  time,  sold  and  conveyed  to  the  said  Tobias  in  fee 
simple,  a  certain  lot  of  ground,  with  the  buildings  thereon  situate,  in 
the  Borough  of  Lebanon,  the  defendant  then  and  there  undertook 


May,  1823.]  OF  PENNSYLVANIA.  435 

(Stoevcr  v.  Stoever  for  the  use  of  his  creditors,) 

and  faithfully  promised  to  pay  the  plaintiff  whatsoever  sum  of  mo- 
ney the  defendant  should  sell  the  said  lot  of  ground,  with  the  ap- 
purtenances, for,  over  and  above  the  sum  of  £  1,800;  averring,  that 
afterwards,  viz :  on  the  day  and  year  aforesaid,  the  defendant  sold 
the  said  lot  of  ground,  with  the  appurtenances,  for  the    sum  of 
£6000 ;  yet,  &c.     The  second  count  was  for  .£4,200,  money  had 
and  received  :  concluding  to  the  damage  of  the  said  Frederick  and 
his  creditors,  .£5000.     The  defendant  pleaded  non  assumpsit,  and 
non  assumpsit  in  fra  sex  annos,  and  issues  were  joined. 
On  the  trial,  the  case  appeared  to  be  as  follows : 
On  the  23d  of  February,  1801,  articles  of  agreement  under  seal, 
were  executed  by  Frederick  Stoever,  of  the  one  part,  and   Tobias 
Stoever  of  the  other  part,  reciting,  that  "  whereas  the  said  Frede- 
rick Stoever  now  oweth  the  said  Tobias  Stoever  the  sum  of  =£1,800, 
of  gold  or  silver  money  of  Pennsylvania,  for  which  sum  of  money 
(or  for  the  securing  the  payment  thereof,)  the  said  Frederick  Stoe- 
ver, and    Margaret,  his   wife,    by    an    indenture    of  conveyance, 
bearing  equal  date  herewith,  did  grant  and  convey  unto  the  said 
Tobias  Stoever,  his  heirs  and  assigns  forever,  a  certain  lot  of  ground, 
number  68,  situate  near  the  centre  of  the  said  Borough,  bounded 
by  Cumberland,  Street,  Market  Street,  and  an  Alley  on  the  east, 
together  with  a  large  three  story  brick  messuage,  or  dwelling  house, 
and  also  a  two  story  log  house,  both  on  the  said  lot  of  ground  erect- 
ed, together  with   the   appurtenances :     Now  this  agreement  vM- 
nesseth,  that  the  said  parties  have,  and  by  these  presents  do,  mu- 
tually agree  to,  and  with  each  other,  as  follows,  to  wit :  the  said 
Tobias  Stoever,  for  himself,  his  heirs,  executors,  and  administra- 
tors, doth  covenant,  promise,  grant,  and  agree  to,  and  with,  the 
said  Frederick  Stoever,  his    heirs,  executors    and    administrators, 
that  neither  he  the  said   Tobias  Stoever,  nor  his  executors,  or  ad- 
ministrators shall,  nor  will,  any,  or  either  of  them,  sell,  convey, 
or  mortgage  the  aforesaid  lot  of  ground,  nor  any  of  the  messuages 
thereon  erected,  unto  any  person  or  persons  whomsoever,  for  the' 
space  or  term  of  three  years  and  three  months,  from  the  date  here- 
of; and  further,  that  the  said   Tobias  Stoever,  his  executors,  or  ad- 
ministrators, shall  and  will  give  up*  and  redeliver  the  aforesaid 
deed,  or  indenture  of  conveyance,  at  any  time  within  the  said  term, 
or  space  of  three  years  and  three  months,  if  the  said  debt  or  sum  of 
money  is  paid  in  the  manner  hereinafter  mentioned,  that  is  to  say, 
if  the  said  Frederick  Stoever,  his  executors,  or  administrators,  shall, 
and  do,  well  and  truly  pay,-  or  cause  to  be  paid,  unto  the  said   7b- 
bias  Stoever,  his  executors,  or  administrators,  the  sum  of  j£1000, 
part  of  the  debt  aforesaid,  on  the  first  day  of  May,  which  will  come 
and  be  in  the  year  of  our  Lord  1803,  with  lawful  interest  for  the 
same  yearly  ;  and  the  further  sum,  or  residue  and  remainder  of  the 
said  debt,  to  wit,  j£800  money  aforesaid,  on  the  first  day  of  May, 
which  will  come,  and  be,  in  the  year  of  our  Lord  1804,  with  law- 
ful interest  for  the  same  yearly.     And  in  case  that  either  the  said 


436  SUPREME  COURT  [Lancaster, 

(Stoevcr  v.  Stoever  for  the  use  of  his  creditors.) 

Frederick  Stoever,  or  Tobias  Stoever,  may  happen  to  die  within  the 
said  term  of  three  years  and  three  months  from  the  date  hereof, 
and  in  case  it  might  happen,  that  the  whole  premises  must  be  sold 
within  the  term  aforesaid,  that  then  the  whole  premises  shall  be  sold 
at  public  vendue,  and  if  the  price  or  consideration  money  amounts 
to  more  than  .£1800,  all  such  overplus  shall  be  paid  to  the  said 
Frederick  Stoever,  his  heirs,  executors,  or  administrators,  (the 
interest  aforesaid  to  be  reckoned  to  the  said  .£1800,)  and  if  the 
price  or  consideration  money  aforesaid  shall  happen  to  be  less  than 
.£1800,  and  the  interest  aforesaid,  then  the  heirs,  executors,  or 
administrators  of  the  said  Frederick  Stoever,  shall  supply,  make 
good,  make  up,  and  pay  such  deficiency  or  sum  wanting,  unto  the 
said  Tobias  Stoever,  his  heirs,  executors,  or  administrators,  accord- 
ing to  the  true  intent  and  meaning  of  these  presents.  And  further, 
for  the  true  and  faithful  performance  of  all  and  singular,  the  cove- 
nants and  agreements  aforesaid,  each  of  the  said  parties  bindeth 
himself,  his  heirs,  executors,  and  administrators,  unto  the  other, 
his  heirs,  executors,  or  administrators,  in  the  penal  sum  of  .£3,600, 
lawful  money  of  Pennsylvania,  to  be  paid  by  the  party  failing  in 
the  performance  thereof.     In  ivitness,  &c. 

F.  Stoever  and  wife,  on  the  same  day,  executed  a  deed,  convey- 
ing the  above  described  property  to  the  defendant,  in  fee  simple, 
in  consideration  of  the  sum  of  £1,800,  and  acknowledged  it  on  the 
14th  December,  1802.  It  was  recorded  on  the  14th  May,  1803. 
An  ejectment  was  brought  by  the  defendant,  T.  Stoever,  against  the 
plaintiff  in  the  Circuit  Court  for  Dauphin  county  to  December  term, 
1805,  and  served  on  F.  Stoever  and  others,  who  appeared,  and 
pleaded  not  guilty,  and  entered  into  the  common  rule,  and  the  cause 
was  marked  for  trial.  Judgment  was  entered  on  the  16th  April, 
1807,  under  the  following  agreement  of  the  parties,  filed  of  record 
in  the  court.  "  It  i  s  agreed  by  the  parties  in  this  cause,  that  a 
judgment  be  entered,  and  that  no  writ  of  possession  issue  until  the 
1st  April  next.  And  in  case  the  amount  of  the  debt  due  to  the 
plaintiff  is  repaid,  with  interests  and  costs  of  suit,  on  or  before  the 
said  day,  the  property  to  remain  in  the  defendant :  but  if  the  debt, 
interest,  and  costs  of  suit,  are  not  then  paid,  a  writ  of  habere  facias 
possessionem,  to  issue  immediately,  and  the  rents  of  the  present 
year  to  be  paid  to  the  plaintiff,  in  case  of  non-payment."  A  writ 
of  habere  facias  possessionem  was  issued  on  this  judgment,  returna- 
ble to  July  term,  1808,  with  a  fi.  fa.  for  the  costs,  and  possession 
was  delivered  under  it  to  the  defendant. 

On  the  1st  January,  1809,  Frederick  Stoever,  the  plaintiff,  peti- 
tioned the  Court  of  Common  Pleas  of  Dauphin  county,  (in  which 
Lebanon  was  then  embraced,)  for  the  benefit  of  the  insolvent  laws, 
and  was  discharged  on  the  6th  March  following,  having  on  that 
day  assigned  all  his  property  under  the  insolvent  laws,  to  Michael 
Steckbeck,  Leonard  Immel,  and  Anthony  Kelker,  in  trust  for  the 
benefit  of  his  creditors.     No  notice  was  taken  in  the  list  of  property 


May,  1823.]  OF  PENNSYLVANIA.  437 

(Stoevcr  v.  Stoever  for  the  use  of  his  creditors.) 

attached  to  the  petition  of  any  claim  by  the  petitioner  to  the  lot  of 
ground. 

The  defendant  offered  the  property  for  sale  upon  the  following* 
conditions,  published  on  the  30th  October,  1813  :  one  half  the  pur- 
chase money  to  be  paid  on  the  1st  April,  1814,  and  the  residue  for 
the  brick  house  and  lot  in  three  equal  annual  payments,  to  be  made 
1st  April,  1815,  1816,  and  1817  :  and  for  the  lot  and  log-  house 
thereon,  the  residue  in  two  annual  payments,  to  be  made  on  the  1st 
April,  1815  and  1816.  A  notice  was  published  in  the  newspaper 
on  the  same  30th  October,  signed  F.  Stoevcr,  that  those  persons 
who  might  be  induced  to  purchase  the  two  large  houses  for  sale  that 
day,  would  do  well  to  search  the  office  at  Lancaster,  and  examine 
the  title,  that  they  might  not  be  belied  and  cheated.  Peter  Line- 
iveaver  became  the  purchaser,  at  the  price  of  £5050,  and  on  the  1st 
April,  1814,  received  a  deed  from  the  defendant,  with  a  clause  of 
general  warranty  :  but  at  the  same  time,  obtained  a  bond  of  indem- 
nity from  the  defendant,  in  the  sum  of  2000  dollars,  conditioned  for 
securing*  the  title  against  all  persons  whatever. 

Evidence  was  given  on  the  part  of  the  defendant  to  show  that  the 
value  of  the  property  in  the  year  1801,  was  about  £2000,  and  that 
prior  to  the  sale  to  Lineweaver,  the  defendant  had  expended  about 
6  or  700  dollars,  in  repairing  the  premises. 

In  support  of  the  plaintiff's  claim  evidence  was  given  by  Michael 
Steckbeck,  that  in  the  year  1809,  the  defendant  came  to  the  wit- 
ness's house,  and  in  a  conversation  with  him,  told  him  that  if  the 
assignees  of  Frederick  Stoever  would  do  nothing  in  the  assignment, 
when  he  sold  the  houses,  he  would  give  the  overplus  of  what  Fre- 
derick owed  him  to  Frederick's  children,  or  to  the  assignees.  He 
afterwards  declared  to  the  witness,  in  the  same  conversation,  that  if 
he  sold  the  house  he  would  not  have  a  cent  more  than  his  debt;  and 
that  it  was  alwavs  his  intention  never  to  retain  a  cent  more,  and  to 
give  the  surplus  to  F.  Stoever's  children  or  his  creditors.  And  again 
said,  that  as  true  as  God's  in  Heaven,  and  he  was  sitting  on  his 
horse,  he  would  not  keep  a  cent  more  than  his  own  money  :  and  that 
wheu  the  witness  heard  that  he  had  sold  the  houses,  he  must  come 
to  him,  and  he  would  pay  the  money  for  the  creditors.  In  1818, 
the  witness  called  on  him,  but  he  declined  paying.  Several  other 
witnesses  spoke  of  conversations  in  1808,  1811,  1815,  1816or  1817, 
and  1820.  In  1811,  the  defendant  said,  that  let  the  houses  sell  for 
what  they  would,  he  would  only  take  his  own  money  ;  that  he 
would  pay  the  overplus  remaining  after  his  debt  was  paid,  to  F. 
Stoever,  or  his  creditors,  that  his  debt  was  £2,400,  or  £2,500,  and 
he  claimed  no  more  than  this  out  of  the  property.  1813  or  1814,  he 
declared  that  he  held  these  houses  as  security  for  this  sum,  and  that 
if  the  debt  was  paid,  Frederick  would  have  the  houses  again  :  in 
1815,  1816,  or  1817,  that  he  had  got  about  15  or  £1G00  for  the 


438  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Sloevcr  for  the  use  of  his  creditors.) 

houses,  which  was  coming-  to  Frederick  yet:    and  in  1820,  that  he 
owed  Frederick  the  money,  but  would  not  give  it  up  to  him. 

The  assignees  never  acted  under  the  assignment,  and  on  the  27th 
December,  1817,  after  the  death  of  Anthony  Kelker,  one  of  the  as- 
signees, the  following  agreement  was  made  between  the  surviving 
assignees,  and  some  of  the  creditors  of  F.  Stoever,  and  executed  re- 
spectively by  the  parties. 

Articles  of  agreement  made  and  concluded  between  Michael 
Steckbeck,  Leonard  Lmmel,  George  Zinn,  Adam  Stoever,  George 
Stoever,  Peter  Rnhl,  Michael  Lea  her,  John  Richard,  John  Car- 
rel, and  Mary  Robinson,  the  creditors  of  Frederick  Sloever,  Esq. 
of  the  borough  of  Lebanon,  &c,  an  insolvent  debtor,  of  the  one  part, 
and  the  said  Frederick  Stoever,  Esq.  of  the  other  part,  Witnesseth, 
that  whereas,  at  the  time  that  the  said  F.  S.  was  discharged  under 
the  insolvent  laws  of  Pennsylvania,  he  assigned  all  his  property  to 
Michael  Steckbeck,  Leonard  lmmel,  and  Anthony  Kelker  in  trust 
for  themselves  and  the  other  creditors  of  the  said  F.  S. ;  and  whereas, 
the  assignees  have  hitherto  neglected  to  take  on  themselves  the  trust 
aforesaid,  we,  therefore,  the  said  creditors,  in  order  to  have  the  af- 
fairs of  the  said  Frederick  Stoever,  brought  to  a  final  settlement, 
do  hereby  release  all  our  right  of,  in,  and  to,  all  and  singular,  the 
real,  personal,  and  mixed  estate,  of  which  the  said  Frederick  Stoe- 
ver was  in  any  manner,  or  any  way,  entitled,  which  passed  to  his 
said  creditors  under  the  said  assignment  :  and  we  do  hereby  empower 
the  said  Frederick  Stoever  to  sue  for,  and  recover  the  same,  in  his 
own  name,  or  otherwise,  as  fully  and  freely  as  he  might  have  done, 
in  case  the  aforesaid  assignment  had  not  been  made,  or  if  he  had 
never  taken  the  benefit  of  the  insolvent  laws,  nevertheless,  in  trust 
for  our  use  and  the  residue  of  the  said  property,  after  the  principal 
of  the  said  debts  being  paid  to  us  without  interest  or  appropriate  to 
his  own  use.  And  further  to  do  all  things  which  the  said  Frederick 
Sloevcr  may  deem  best  calculated  to  promote  the  interest  of  all  the 
parties.     In  witness,  &c. 

It  farther  appeared  by  evidence  given  on  the  part  of  the  defen- 
dant that  Frederick  Sloever  had  derived  his  property  from  his 
father,  who  devised  it  to  him  in  the  year  1779,  in  the  following 
terms  :  "  I  further  give  and  bequeath  unto  my  youngest  son,  Fre- 
derick, the  corner  lot,  with  the  houses  upon  it,  in  Lebanon,  with 
the  benefit  of  two  eighth  parts  of  the  ground  rents  belonging  to 
Lebanon,  as  his  own  property.  The  organ,  a  horse,  saddle,  his 
bedding,  table,  chairs,  silver  spoons,  gilded  cups,  desk,  looking 
glass,  bedstead,  all  the  money  now  in  possession,  both  congress  and 
hard  money,  of  which  numbered  particulars  he  shall  not  be  master 
of  till  he  has  attained  his  full  age,  which  will  be  in  September,  1780. 
Appendix  to  the  will.  Further,  I  will  and  order,  that  in  case  my 
son  Frederick  should  die  before  he  has  his  lawful  age,  or  should 
die  after  he  has  come  to  his  lawful  age,  without  issue,  then,  all  and 


May,  1S23.]  OF  PENNSYLVANIA.  439 

(Stoever  v.   Stoever  for  the  use  of  his  creditors.) 

singular  the  above  legacies,  or  what  shall  be  left  thereof  shall  be 
sold,  and  then  it  shall  be  equally  divided  among  the  rest  of  my 
children,  or  their  representatives."  Frederick  Stoever,  at  the  time 
of  trial,  was  of  full  age,  married,  and  had  lawful  issue. 

Thirteen  bills  of  exceptions  were  taken  in  the  course  of  the  trial, 
on  behalf  of  the  defendant.,  to  evidence  offered  on  the  part  of  the 
plaintiff',  and  admitted  by  the  court. 

The  first  was  to  the  admission  of  the  deed  from  Tobias  Stoever 
to  Peter  Lineweaver,  dated  the  1st  April,  1814. 

The  second  was  to  the  admission  of  Michael  Stechbeck  as  a  wit- 
ness, after  the  production  of  a  release  from  him  to  Frederick  Stoe- 
ver, dated  the  8th  December,  1818.  He  was  objected  to  as  being 
a  trustee  of  the  estate  of  F.  Stoever,  appointed  by  the  court  on  his 
discharge  under  the  insolvent  laws,  on  the  6th  March,  1809. 

Immediately  after  Steckbeck,s  admission,  the  defendant  called  a 
witness,  who  stated,  that  in  August,  1819,  Steckbeck  told  him  that 
he  had  given  up  to  F.  Stoever  his  bond,  but  F.  Stoever  owed 
him  2  or  300  pounds  yet.  The  plaintiff*  then  executed  a  release  to 
F.  Stoever  in  court,  and  the  witness  who  proved  its  execution, 
stated,  that  no  money  was  paid  at  its  execution,  nor  was  any  con- 
sideration given  that  he  knew  of:  it  was  intended  to  embrace  the 
object  of  the  former  release.  The  defendant  then  again  objected 
to  his  admission,  but  the  court  overruled  the  objection,  and  sealed 
a  third  bill  of  exceptions. 

Steckbeck  was  then  examined  by  the  defendant,  as  to  the  power 
of  attorney  given  by  him  and  others,  dated  the  26th  December, 
1817,  (above  recited,)  and  on  the  production  of  this  paper,  the  de- 
fendant again  objected  to  the  competency  of  the  witness.  But  the 
court  overruled  the  objection,  and  a  fourth  bill  of  exceptions  was 
tendered. 

The  witness,  Steckbeck,  then  proceeded  to  detail  conversations 
with  the  defendant  of  the  tenor  above  mentioned,  when  the  defend- 
ant objected  to  any  statement  by  the  witness  of  what  took  place 
more  than  six  years  before  this  suit  was  brought:  but  the  court 
overruled  this  objection,  and  sealed  a  fifth  bill  of  exceptions. 

After  Steckbeck  had  gone  through  his  examination  in  chief,  the 
plaintiff  asked  him  whether  he  had  been  paid  his  debt  in  full  by 
Frederick  Stoever,  and  whether  he  had  any  interest  in  this  cause  ? 
To  these  questions  the  defendant  objected,  but  the  court  allowed 
them,  and  a  sixth  bill  of  exceptions  was  taken. 

On  the  conclusion  of  Steckbecli's  cross  examination,  the  defendant 
tendered  a  seventh  bill  of  exceptions  to  the  whole  of  his  evidence. 

The  remaining  bills  of  exceptions,  were  on  points  not  noticed  in 
the  opinion  of  the  court,  and  therefore,  not  material. 

The  following  opinions  were  submitted  to  the  court  by  the  de- 
fendant. 

1.  That  every  action  founded  upon  a  contract,  must  be  brought 


440  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Stoever  for  the  use  of  his  creditors.) 

in  the  name  of  the  party  in  whom  the  legal  interest  in  such  con- 
tract is  vested ;  and  that  by  the  insolvency  of  the  plaintiff,  and  his 
assignment  of  the  6th  March,  1809,  of  all  his  estate,  the  legal  in- 
terest in  the  contract  upon  which  this  suit  is  founded,  is  vested  in 
his  assignees,  and  any  suit  at  law,  brought  to  enforce  the  perform- 
ance of  it,  must  be  in  their  names,  and  not  in  that  of  the  insolvent 
debtor. 

2.  That  by  the  assignment  of  the  6th  March,  1809,  the  estate  of 
the  plaintiff  vested  in  his  assignees,  and  cannot  be  divested  by  any 
composition  of  the  plaintiff  with  a  part  of  his  creditors ;  and  that  by 
the  evidence  in  the  cause,  nothing  more  than  a  partial  composition 
with  the  creditors  has  been  shown,  which  cannot  divest  the  legal 
right  of  the  assignees. 

3.  That  if  he  can  sue  in  his  own  right,  the  form  of  action  is  mis- 
conceived ;  for  if  there  be  any  cause  of  action,  covenant,  and  not 
case  is  the  proper  remedy ;  the  contract  being  under  seal,  precise 
in  its  terms,  and  affording  a  specific  action. 

4.  That  the  parol  testimony  adduced  in  the  cause  proves  no  con- 
tract made  by  the  plaintiff  with  the  defendant,  on  which  this  action 
can  be  supported. 

5.  That  the  contract  evidenced  by  the  deeds  and  articles  in  the 
cause,  is  a  conditional  sale  of  the  property,  which,  not  being  re- 
purchased within  the  time  limited,  became  absolute,  and  all  the  tes- 
timony given  in  the  cause  does  not  vary  that  character. 

6.  That  as  the  articles  of  agreement  of  the  23d  of  February, 
1801,  are  the  partie's  own  exposition  of  their  meaning,  as  to  the  ab- 
solute deed  between  them  of  the  same  date ;  the  terms  of  that  agree- 
ment cannot  be  enlarged,  restricted,  or  in  any  wise  varied  by  pa- 
rol testimony,  but  their  construction  must  be  made  on  the  two  in- 
struments, when  there  is  no  evidence  or  testimony  at  the  time  of 
their  execution,  of  fraud  or  mistake. 

7.  That  if  the  court  shall  be  of  opinion,  that  the  original  bargain 
is  to  be  considered  as  a  mortgage,  then  it  was  released  and  aban- 
doned by  the  subsequent  conduct,  actions,  and  admissions  of  the 
parties. 

8.  That  by  the  recovery  in  ejectment  given  in  evidence  in  this 
cause,  going  into  full  and  complete  operation  and  effect,  under  the 
agreement  of  the  parties  in  that  cause  given  in  evidence  in  this : 
the  fee  simple,  conveyed  by  the  deed  of  the  23d  February,  1801, 
became  absolute,  and  the  restrictions  contained  in  the  articles  of 
the  same  date  annulled,  leaving  the  terms  upon  which  the  judg- 
ment was  rendered,  the  only  stipulations  between  the  parties. 

9.  That  if  the  deed  of  the  23d  February,  1801,  became  absolute, 
as  stated  in  the  preceding  proposition,  No.  8,  no  consideration 
could  afterwards  arise  out  of  it  to  support  any  subsequent  promise, 
and  that  if  any  such  promise  were  supposed  to  be  proven  in  the 
cause,  the  same  would  be  void  for  want  of  consideration.  And 
that  if  it  did  not  so  become  absolute,  yet  being  evidenced  by  spe- 


May,  1823.]  OF  PENNSYLVANIA.  441 

(Stoever  u.  Stoever,  for  the  use  of  his  creditors.) 

cialty,  it  could  not  become  the  consideration  of  a  parol  promise  in 
this  case. 

10.  That  as  the  plaintiff,  by  his  advertisement  of  the  30th  Octo- 
ber, 1813,  published  upon  the  day  of  sale,  stigmatized  the  title 
which  the  defendant  on  that  day  was  selling,  under  his  deed  of  23d 
February,  1801,  which  obliged  the  defendant  to  give  a  bond  of 
indemnity  for  2000  dollars  to  the  purchaser,  the  plaintiff,  even  if 
the  original  transaction  were  a  mortgage,  and  could  be  considered 
so  to  continue,  could  not  claim  any  of  the  proceeds  of  the  sale, 
while  the  responsibility  created  by  that  bond  continued. 

11.  That  as  the  title  derived  to  Frederick  Stoever,  under  his 
father's  will,  and  that  granted  by  him  to  Tobias  Steover,  is  defective 
and  uncertain,  as  to  the  interest  devised  to  the  devisee,  the  said 
Frederick,  and  as  he  has  never  removed  these  defects,  he  cannot 
recover  in  this  suit. 

The  opinion  of  the  court  in  answer  to  the  foregoing  points. 

1.  Every  action  founded  upon  a  contract,  must  be  brought  in  the 
name  of  the  party  in  whom  the  legal  interest  in  such  contract  is 
vested.  By  the  assignment  of  F.  Stoever  of  the  6th  March,  1809, 
the  legal  interest  in  the  contract  upon  which  this  suit  is  founded, 
vested  in  the  assignees,  Anthony  Kelker,  Michael  Steckbeck,  and 
Leonard  Immel.  Anthony  Kelker  died  without  having  done  any  act 
as  assignee,  and  Michael  Steckbeck  and  Leonard  Immel,  the  sur- 
viving assignees,  on  the  27  December,  1817,  join  with  some  other 
creditors,  in  executing  an  instrument  of  writing  to  Frederick  Stoever, 
which  recites  the  discharge  of  Frederick  Stoever  under  the  insolvent 
laws  of  Pennsylvania,  and  his  assignment  to  Michael  Steckbeck, 
Leonard  Immel  and  Anthony  Kelker. 

By  this  instrument  Frederick  Stoever  has  authority  for  bringing 
suit  vested  in  him,  and  the  present  action,  brought  in  the  name  of 
Frederick  Stoever,  for  the  use  of  his  creditors,  is  properly  brought. 

2.  By  the  paper  of  the  27th  December,  1817,  recited  in  answer  to 
No.  1,  Frederick  has  authority  to  sue,  and  this  suit  is  properly 
brought. 

3.  The  form  of  action  is  not  misconceived. 

4.  This  is  a  question  of  fact  for  the  jury  to  decide.  Several  wit- 
nesses have  sworn  that  the  defendant  repeatedly  declared,  that  he 
wanted  no  more  than  his  own  debt  out  of  the  proceeds  of  sale  of 
the  houses  and  lot,  and  that  he  would  give  the  surplus  to  Frederick 
Stoever,  his  creditors,  or  his  children.  If  these  witnesses  have  sworn 
the  truth,  then  most  certainly,  they  show  a  contract  on  which  this 
action  can  be  supported. 

5.  The  contract  evidenced  by  the  deed  and  articles  is  a  mortgage, 
and  the  non-payment  of  the  debt  within  the  time  limited  does  not 
alter  its  nature,  and  make  it  an  absolute  sale.  An  estate  cannot  be 
a  mortgage  at  one  time,  and  an  absolute  purchase  at  another. 

6.  As  the  articles  or  agreement  of  the  23d  February,  1801,  are 
vol.  ix.  3  K 


442  SUPREME  COURT  [Lancaster, 

(Sloover  v.  Stoever,  for  the  use  of  his  creditors.) 

the  parties'  own  exposition  of  their  meaning  as  to  the  deed  between 
them  of  the  same  date — the  terms  of  that  agreement  cannot  be  en- 
larged, restricted,  or  in  any  manner  varied  by  parol  testimony,  but 
the  construction  must  be  made  on  the  two  instruments  when  there 
is  no  evidence  or  testimony  at  the  time  of  their  formation  and  ex- 
ecution, of  fraud  or  mistake. 

7.  The  original  bargain  is  to  be  considered  as  a  mortgage,  and 
the  subsequent  conduct,  actions,  and  admissions  of  the  parties  proved 
jn  the  cause,  do  not  show  that  it  was  released  ^and  abandoned. 

8.  The  recovery  in  ejectment  going  into  effect  under  the  agree- 
ment of  the  parties  in  that  cause,  amounts  to  nothing  more  than  a 
recovery  by  a  mortgagee.  The  fee  simple  conveyed  by  the  deed  of 
23d  February,  1801,  did  not  become  absolute — and  the  restrictions 
contained  in  the  articles  of  same  date,  were  not  annulled.  They 
still  remained. 

9.  If  the  deed  of  the  23d  February,  1801,  had  become  absolute, 
as  stated  in  the  preceding  proposition,  No.  8,  then  certainly  no  con- 
sideration could  afterwards  arise  out  of  it  to  support  any  subsequent 
promise,  and  if  such  promise  were  supposed  to  be  proven  in  the 
cause,  the  same  would  be  void  for  want  of  consideration.  But  as  it 
did  not  so  become  absolute,  although  evidenced  by  specialty,  it 
could  become  the  consideration  of  a  parol  promise  in  this  case. 

10.  Admitting  the  facts  stated  in  this  proposition,  the  plaintiff' 
can  claim  part  of  the  proceeds  of  sale,  notwithstanding  the  continu- 
ance of  the  responsibility  created  by  this  bond. 

11.  The  title  derived  to  Frederick  Stoever  under  his  father's  will, 
and  that  granted  by  him  to  Tobias  Stoever,  is  neither  defective  nor 
uncertain  as  to  the  interest  devised  to  the  devisee,  the  said  Fre- 
derick. It  is  in  evidence  that  he  is  of  full  age,  is  married,  and  has 
issue.  There  being  no  defects  in  the  title,  he  can  remove  none, 
and  may  recover  in  this  suit. 

Points  submitted  by  the  plaintiff. 

1.  The  same  as  No.  5,  submitted  by  the  defendant,  and  the  opi- 
nion of  the  court  the  same,  that  the  contract  was  a  mortgage. 

2.  That  by  the  contract  of  the  23d  February,  1801,  Tobias  Stoever 
became  a  trustee  for  the  use  of  himself  and  F.  Stoever,  and  was  in- 
vested with  power  to  sell  the  premises,  and  was  liable  to  account 
for  the  proceeds  of  the  sale.  The  court  answer  this  point  in  the  af- 
firmative. 

3.  That  the  assignment  of  Frederick  Stoever  to  his  creditors  when 
he  wTas  discharged  under  the  insolvent  laws,  vested  the  contingent 
interest  of  Frederick  Stoever  in  the  said  premises  in  his  said  trustees, 
with  power  to  convey  the  same  to  whomsoever  they  pleased.  The 
court  say  this  is  the  law. 

4.  That  a  recovery  by  the  mortgagee  against  the  mortgagor  in 
ejectment,  is  not  a  foreclosure  of  the  equity  of  redemption,  but  that 
although  the  mortgagee  may  in  ejectment,  recover  the  mortgaged 


May,  1823.]  OF  PENNSYLVANIA.  443 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

premises  after  default  made  in  the  condition,  yet  the  mortgagor  may* 
at  any  time  within  20  years  after  the  forfeiture,  recover  the  premises* 
by  repaying  or  tendering  the  whole  amount  of  the  debt,  interest, 
costs  and  charges,  to  which  the  mortgagee  may  have  been  subjected. 
Affirmed  by  the  court  as  the  law. 

5.  Tobias  having  taken  the  conveyance  from  Frederick,  and  at 
the  same  time,  executed  to  him  the  agreement,  having  recovered 
possession  of  the  premises  in  ejectment,  and  afterwards  sold  the 
premises  at  public  sale,  he  is  bound  in  law  to  account  for  the  pro- 
ceeds of  the  sale,  retaining  his  debt,  interest,  and  reasonable  ex- 
penses and  repairs.     The  court  say  this  is  the  law. 

The  case  was   argued  by  Nor  r  is  and  Hopkins,  for  the  plaintiff 
in  error,  aud  Wright  and  Fisher  for  the  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by 

Duncan,  J.  This  was  an  action  of  assumpsit,  brought  by  the 
defendant  in  error  against  the  plaintiff  in  error.  There  are  two 
counts  in  the  declaration,  and  a  general  verdict  in  favour  of  the 
plaintiff.  The  first  states,  that  whereas,  heretofore  on  the  1st  Janu- 
ary, 1818,  in  consideration  that  the  said  Frederick  and  Margaret 
his  wife  had,  before  that  time,  sold  and  conveyed  to  the  said  Tobias 
in  fee  simple,  a  certain  lot  of  ground  in  the  borough  of  Lebanon,  he 
the  said  Tobias,  then  and  there  undertook  and  faithfully  promised* 
to  pay  the  said  Frederick,  whatever  sum  of  money  the  said  Tobias 
should  sell  the  said  lot  of  ground  for,  over  and  above  the  sum  of 
.£1800  :  and  the  said  Frederick  avers,  that  afterwards,  to  wit.  on 
the  day  and  year  aforesaid,  the  said  Tobias  sold  the  said  lot  of 
ground,  with  the  appurtenances,  at  and  for  the  sum  of  ,£6000.  Yet 
the  said  Tobias  though  afterwards  requested,  hath  not  paid  the  said 
sum  of  £4200,  nor  any  other  sum  in  satisfaction  of  the  same,  but  the 
same  to  pay  hath  refused,  to  the  damage  of  the  said  Frederick  and 
his  creditors. 

The  second  count  is,  indebitatus  assumpsit  for  £4200  of  plain- 
tiff* received  by  the  defendant  to  and  for  the  use  of  the  plaintiff,  to  his 
damage,  and  the  damage  of  his  creditors,  &c. 

The  state  of  the  case,  so  far  as  depends  on  documentary  evidence, 
is  this  : 

John  Casper  Stoever,  being  seised  in  fee  of  the  lot,  on  the  12th 
May,  1779,  devised  as  follows  :  "1  give  and  bequeath  to  my  young- 
est son  Frederick,  the  corner  lot,  with  the  houses  upon  it,  in  Le- 
banon, with  the  benefit  of  two  eighth  parts  of  the  ground  rents  be- 
longing to  Lebanon,  as  his  own  property,  the  organ,  a  horse,  sad- 
dle, his  bedding,  tables,  chairs,  silver  spoons,  gilded  cup,  desk, 
looking  glass,  bedstead,  all  the  money  now  in  possession,  both  con- 
gress and  hard  money,  of  which  numbered  particulars  he  shall  not 
be  master,  till  he  has  his  full  age,  which  will  be  in  September,  1780." 
Appendix  to  the  will.  "  Further,  I  will  and  order,  that  in  case  my 
son  Frederick  should  die,  before  he  has  his  lawful  age,  or  should 


444  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Stecvcr,  for  the  use  of  his  creditors.) 

die  after  he  come  to  his  lawful  age,  without  issue,  then  all  and  sin- 
gular the  above  legacies,  or  what  shall  be  left  thereof,  shall  be  sold, 
and  then  it  shall  be  equally  divided  among  the  rest  of  my  children 
or  their  representatives."  Frederick  being  indebted  to  his  brother 
Tobias,  in  the  sum  of  £1800,  on  the  23d  February,  1801,  with 
his  wife,  conveys  the  lot  of  ground  in  absolute  fee  simple  to  him  ; 
and  on  the  same  day  Tobias  executes  an  agreement  tantamount  to 
a  deed  of  defeasance.  On  the  14th  December,  1802,  the  deed  from 
Frederick  and  wife  to  Tobias,  was  acknowledged  by  them,  and  re- 
corded 14th  May,  1803.  Frederick  continued  in  possession,  and 
an  ejectment  was  brought  by  Tobias  against  Frederick,  to  Decem- 
ber, 1805,  and  on  the  16th  April,  there  was  judgment  on  terms  in 
writing  filed  of  record,  signed  by  the  counsel  of  the  parties,  that  a 
judgment  be  entered,  and  that  no  writ  of  possession  issue  until  the 
1st  of  April  next ;  and  in  case  the  amount  of  the  debt  due  to  plain- 
tiff be  repaid  with  interest  and  costs  of  suit,  on  or  before  the  said 
day,  the  property  to  remain  in  the  defendant ;  but  if  the  debt  interest 
and  costs  of  suit  are  not  then  paid,  a  writ  of  habere  facias  possessio- 
nem, to  issue  immediately,  and  the  rents  of  the  present  year  to  he  paid 
to  the  plaintiff,  in  case  of  non-payment.  This  money  not  having 
been  paid,  a  habere  facias  possessionem,  issued  to  July,  1808,  and 
possession  was  delivered. 

On  the  31st  January  1809,  Frederick  Stoever  petitioned  for  the 
benefit  of  the  insolvent  laws.  There  is  a  list  of  his  property,  and  of 
his  creditors.  This  lot  of  ground  is  not  included,  nor  any  notice  in 
relation  to  it,  of  any  claim  by  the  petitioner. 

On  the  6th  March,  1809,  Frederick  Stoever  was  discharged,  after 
making  the  usual  assignment  of  his  effects  for  the  benefit  of  his  cre- 
ditors. His  assignees  were,  Michael  Sleckbeck,  Leonard  Immel  and 
Anthony  Kelker. 

On  the  30th  October,  1813,  the  lot,  <3£c.  was  sold  at  public  sale 
by  Tobias  Stoever  to  Peter  Lineweaver,  possession  delivered,  con- 
sideration money  <£5050,  On  the  same  day,  notice  was  given  by 
Tobias  Stoever  in  the  Morning  Star,  a  German  newspaper  published 
at  Lebanon:  "Take  Notice — who  may  be  inclined  to  purchase  the 
two  large  houses  for  sale  this  day,  will  do  well  to  search  the  office 
at  Lebanon,  and  examine  the  titles,  that  they  may  not  be  belied  and 
cheated."  This  notice  could  relate  only  to  this  property,  and  must 
have  referred  to  his  father's  will,  and  certainly  was  intended  to  hold 
out  that  the  purchaser  would  be  defrauded,  and  that  Tobias  had  no 
title.  To  May,  1818,  Frederick  Stoever  had  brought  an  action  of 
debt  on  book  account  against  Tobias:  arbitrators  found  in  favour  of 
defendant,  <£1G  5s.  b\d.,  and  judgment  was  entered  on  the  report 
December,  1809.  On  the  1st  April,  1814,  deed  with  covenant  of 
warranty  was  executed  to  the  purchaser  Lineweaver,  and  on  the  7th 
April,  1814,  a  bond  of  indemnity  from  Tobias  to  Lineweaver,  in  20,000 
dollars,  for  securing  the  title  against  all  persons. 


May,  1823.]  OF  PENNSYLVANIA.  445 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

Anthony  Kelker,  one  of  the  assignees,  died,  and  Michael  Sleek- 
beck  and  Leonard  Immel,  on  the  27th  December,  1817,  with  four 
other  creditors  joined  in  an  instrument  of  writing  to  Frederick, 
which  after  reciting  his  discharge  under  the  insolvent  act,  proceeds, 
"and  whereas  the  said  assignees  have  hitherto  neglected  to  take 
upon  themselves  the  trust  aforesaid,  we,  the  said  creditors,  in  order 
to  have  the  affairs  of  the  said  Frederick  brought  to  a  final  settle- 
ment, do  hereby  release  all  and  singular  the  real,  personal  and  mixed 
estate  of  which  the  said  Frederick  was  in  any  manner  or  way  enti- 
tled, which  passed  to  his  said  creditors  under  the  said  assignment; 
and  we  do  hereby  empower  the  said  Frederick  Stoever  to  sue  for 
and  recover  the  same,  in  his  own  name  or  otherwise,  as  fully 
and  freely  as  he  might  have  done  in  case  the  aforesaid  assignment 
had  not  been  made,  or  as  if  he  had  never  taken  the  benefit  of  the 
insolvent  laws,  nevertheless  in  trust,  and  for  our  use ;  and  the 
residue  of  the  said  property,  the  principal  of  the  said  debts  being 
paid,  to  use  without  interest,  to  appropriate  to  his  own  use.  And 
further  to  do  such  things  that  the  said  Frederick  Stoever  may  deem 
best  calculated  to  promote  the  interest  of  all  parties  to  this  agree- 
ment. 

The  case  will  be  best  understood  by  separating  the  written  evi- 
dence, all  of  which  was  clearly  competent,  from  the  parol  evidence 
which  has  been  excepted  to,  thus  considering  the  operation  of  such 
parts  of  the  parol  evidence  as  may  be  considered  legal,  on  the 
general  merits,  and  on  the  answers  of  the  court,  to  the  many  ques- 
tions proposed  by  the  counsel  on  each  side,  in  their  charge  to  the 
jury. 

And  the  first  question,  which  has  engaged  our  attention  is,  what 
estate  did  Frederick  take  in  this  property,  under  his  father's  will : 
for  if  he  only  took  a  fee  tail,  or  if  it  is  even  doubtful,  it  would  be 
unjust  to  expose  Tobias,  first  to  a  payment  to  Frederick,  as  if  he 
held  in  fee  simple,  (unless  he  suffered  a  common  recovery,  or  exe- 
cuted a  conveyance  in  the  form  prescribed  by  law  for  barring  es- 
tates tail,  to  the  purchaser,)  and  then  to  damages  on  his  covenant 
of  warranty,  or  bond  of  indemnity. 

On  this  point,  the  court  have  found  no  difficulty,  and  it  is  well 
for  the  plaintiff  in  error  they  have  not.  It  would  be  to  him  a  very 
disastrous  victory ;  for  in  that  event  he  would  lose  all. 

In  forming  a  conclusion,  as  to  the  true  intention  of  the  testator, 
the  mind  is  free  from  the  control  of  all  technical  limitations,  or  the 
meaning  of  legal  phrases.  Did  the  interpretation  rest  on  the  first 
part  of  the  will,  there  could  be  no  doubt  but  that  a  fee  simple  in 
the  lot  is  devised  to  Frederick.  He  gives  him  the  corner  lot,  with 
the  house  upon  it,  as  his  own  property.  The  devise  is  of  real 
property ;  and  where  it  is  so  applied,  property  is  a  word  large 
enough  to  carry  the  interest  in  the  estate.  It  is  stronger  than 
"  all  my  real  and  personal  effects,"  which  have  been  construed 
a  fee.  Cowp.  290.  There  Lord  Mansfield  said,  the  word 
"  effects/'  is  synonymous  with  substance,  and  property  generally 


446  SUPREME  COURT  [Lancaster, 

(Stocver  v.  Stoevcr,  for  the  use  of  his  creditors.) 

is  every  property  a  man  has,  to  be  enjoyed  as  his  own.  The  very 
question  was  decided  in  Morrison  and  others  v.  Semple,  6  Binn. 
94,  that  a  devise  of  all  my  real  and  personal  property  passes  a  fee. 
It  is  very  doubtful,  whether  the  appendix  related  to  the  lot,  or  was 
confined  to  the  legacy  of  personal  effects ;  and  if  it  was  doubtful, 
then,  as  it  does  not  ex  vi  termini  include  land,  it  ought  not  to  be 
so  construed.  The  word  legacy,  where  by  direct  reference,  or  mani- 
fest implication,  it  is  applied  to  real  estate,  will  pass  it.  Rossiter  v. 
Simmons,  6  Serg.  <$*  Rawle.  It  is  to  be  observed,  that  in  the  devising 
clause,  the  lot  is  immediately  to  be  his  own  property :  but  the  per- 
sonal property  he  is  not  to  be  master  of  until  21.  He  had  declared, 
that  his  son  immediately  should  have  the  lot  as  his  own;  but  the 
other  legacies  he  was  not  to  be  master  of  until  21.  He  might  well 
intend  to  provide  for  the  event  of  his  dying  under  21,  without  issue, 
and  currente  calamo  add,  or  if  he  should  die  after  he  comes  to  his 
lawful  age,  the  above  legacies,  or  what  shall  be  left  of  them,  shall 
be  sold,  which  naturally  refers  to  personal  property,  the  furniture, 
which  might  be  worn  out  or  broken,  or  the  money  which  might  be 
spent.  It  is  at  best  but  mere  conjecture,  involved  in  obscurity, 
which  should  not  change  an  express  devising  clause,  nor  limit  an 
absolute  estate  given  in  the  first  part  of  the  will.  But  if  it  did  mean 
real  estate,  the  lot,  then,  what  is  the  devise  over  ?  Such  part  only 
as  should  be  left ;  thus  admitting  a  right  of  disposition.  Such  part 
of  the  personal  estate  as  should  not  be  consumed  by  him,  and  such 
part  of  the  realty  as  had  not  been  disposed  of  by  him  in  his  life 
time,  on  his  death  without  issue,  is  limited  over.  It  is  not  fit  to 
cast  a  shade  on  this  title,  by  deciding,  that  it  is  doubtful)  and  that 
in  order  to  entitle  the  plaintiff  to  recover,  he  should  bar  the  entail. 
It  is  not  doubtful,  and  this  is  no  impediment  to  the  plaintiff's  right 
of  recovery.  Frederick  Stoever  had  the  right  or  power  to  dispose 
of  it  in  fee  simple. 

On  the  writings,  the  conveyance  with  the  defeasance,  was  this  a 
mortgage  1  Where  the  question,  whether  mortgage  or  not,  depends 
solely  on  the  writings,  it  is  purely  a  matter  of  law,  and  ought  not 
to  be  left  to  a  jury :  otherwise,  if  it  depends  partly  on  parol  evi- 
dence. Wharfs  v.  Howell,  5  Binney,  499.  The  question  is  s  ome- 
times  complex  and  intricate,  and  it  is  difficult  to  draw  a  line  of  dis- 
crimination, which  shall  be,  at  the  same  time,  precise  and  equita- 
ble, between  mortgages  and  conditional  sales.  But  here  there  are 
such  strong  features,  that  it  is  impossible  to  mistake  the  parent- 
age of  these  instruments,  the  family  stock  from  which  they  spring. 
The  defeasance,  I  consider  as  incorporated  into  the  deed.  In  its 
first  concoction,  was  this  a  conditional  sale,  really  intended  to  be 
actual,  on  the  non-payment  of  the  money,  on  the  day  prescribed, 
or  was  it  a  security  for  the  payment  of  the  money.  It  is  impossi- 
ble to  deny  the  power  of  two  individuals,  capable  of  acting  for 
themselves,  to  make  a  contract  for  the  purchase  and  sale  of  lands 
defeasible  by  the  payment  of  money,  at  a  future  day.     Such  con- 


May,  1823.]  OF  PENNSYLVANIA.  447 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

tracts  are  not  prohibited  by  the  policy  of  the  law,  but  the  policy  of 
the  law  does  prohibit  the  conversion  of  a  real  mortgage  into  a  sale. 
And  as  lenders  of  money  are  less  under  the  pressure  of  circum- 
stances, which  control  the  perfect  and  free  exercise  of  the  judg- 
ment, than  the  borrowers,  the  effort  is  frequently  made  by  persons 
of  this  description,  to  avail  themselves  of  the  advantage  of  this  su- 
periority, in  order  to  obtain  inequitable  advantage.  Taking  up  all 
the  cases  on  this  subject,  it  will  be  found,  that  the  leaning  of  the 
court  has  been  always  against  them,  and  doubtful  cases  have  been 
decided  generally  as  mortgages.  Conway's  Executors  v.  Alexan- 
der, 7  Cranch,  218.  The  form  of  this  defeasance  is  pretty  conclu- 
sive evidence,  that  it  was  intended  as  a  security  for  the  payment  of 
money  loaned  by  Tobias  to  Frederick.  It  recites,  that  Frederick 
now  oweth  to  Tobias  the  sum  of  £1800,  for  which  sum  of  money, 
or  securing  the  payment  thereof,  the  said  Frederick  did,  by  con- 
veyance bearing  the  same  date,  convey  the  lot  of  ground  to  Tobias. 
Thus  in  the  very  outset,  we  have  the  explicit  declaration,  that  the 
conveyance  was  executed  for  securing  the  payment  of  .£1800. 

An  estate  cannot  be  a  mortgage  at  one  time,  and  an  absolute  pur- 
chase at  another.  The  very  fact,  that  the  sale  was  conditional, 
implies  an  expectation  to  redeem.  But  the  concurrent  agreement 
gives  a  power  of  redemption,  limited,  in  point  of  time,  as  clauses 
of  redemption  are.  A  conveyance  may  be  considered  as  a  mort- 
gage, though  the  defeasance  be  on  a  separate  paper.  Dimojid's 
Lessee  v.  Enoch,  Addis.  357.  There  is  sometimes  a  difficulty  in 
disquisitions  of  this  sort,  in  drawing  a  line  between  mortgages  and 
conditional  sales.  The  great  desideratum,  which  Courts  of  Chan- 
cery make  the  ground  of  their  decision,  is,  whether  the  purpose  of 
the  parties  was,  to  treat  of  a  purchase,  the  value  of  the  property 
contemplated,  and  the  price  fixed,  or  whether  the  object  was  a  loan, 
and  the  security  of  the  pledge  for  re-payment  intended.  Robertson 
v.  Campbell,  2  Call,  428.    Wheeland's  Lessee  v.  Swartz,  1  Yeates,  579. 

The  answer  of  the  court  to  the  plaintiff's  second  point,  and  fifth 
point,  is  erroneous.  It  was  not  the  purpose  of  the  instrument  to  vest 
the  fee  simple  absolutely  in  Tobias,  for  the  purpose  of  a  sale,  and  for 
the  proceeds  after  payment  of  his  own  debt,  to  render  him  respon- 
sible as  a  trustee  for  Frederick ;  and  if  there  was  any  covenant  to 
that  effect,  then  this  action  could  not  be  supported.  Besides,  this 
is  totally  inconsistent  with  the  answer  to  the  first  question,  which 
expressly  recognises  that  the  contract  was  a  mortgage.  The  an- 
swer to  the  first  point  decides  both  the  question  of  law  and  fact. 
If  it  depended  on  the  writings  only,  then  the  parol  evidence  was 
inadmissible.  But,  as  it  was  admitted,  and  depended  partly  on  the 
parol  testimony,  whether  it  was  a  mortgage  or  conditional  sale,  it 
ought  to  be  left  to  the  jury.      Wharfe  v.  Hoioell,  5  Binn.  499. 

This  was  expressly  decided  in  Wharfe  v.  Hoioell,  5  Binn.  499, 
where  A.,  in  consideration  of  $200,  executed  and  delivered  to  B. 


448  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

an  absolute  deed  in  fee  simple,  of  land  worth  $800 ;  and,  at  the 
same  time,  B.  executed  and  delivered  to  A.  a  deed  of  defeasance, 
conditioned,  that  if  A.  should,  within  three  months,  pav  to  B.  the 
sum  of  $200  without  any  deduction,  the  first  deed  should  be  void, 
and  be  should  reconvey  :  and,  at  the  time  of  executing  the  deeds, 
the  scrivener  stated  to  the  parties,  that  the  writing  would  operate 
as  a  mortgage :  it  was  held  that  though  there  was  no  convenant  for 
the  repayment  of  the  money  lent  and  interest,  the  writings  consti- 
tuted a  mortgage,  upon  which  the  lender  might  recover  the  money 
due  by  scire  facias  and  sale,  and  the  borrower  recover  the  premises 
in  ejectment,  and,  if  the  rents  and  profits  received  by  the  lender  up 
to  the  time  of  trial  were  equal  to  the  money  lent  and  interest, 
without  bringing  the  money  into  court.  Thus,  the  want  of  a  cove- 
nant to  repay  makes  no  difference,  as  has  been  decided  in  many 
cases ;  particularly  2  Atk.  296.  2  Wash.  14.  Ross  v.  JYorvall. 
This  case  is  stronger  than  Wfiarfe  v.  Howell.  There  the  scrive- 
ner was  suffered  to  swear,  that  the  defeasance  was  intended  as  a 
mortgage ;  here  the  very  agreement  states  the  conveyance  to  be  a 
security  for  the  payment  of  money.  It  is  in  terms,  redeemable 
within  three  years.  Now  the  time  of  redemption  is,  in  equity, 
in  general  unimportant;  for  the  redemption  cannot  be  clogged. 
Chancery  would  decree  a  reconveyance  after  the  stipulated  time, 
and  the  parties  cannot  by  their  own  agreement  preclude  the  chan- 
cellor from  granting  relief;  for  their  agreement  cannot  alter  what 
the  court  says  are  the  special  terms  of  that  contract.  But  this,  ap- 
plied to  the  case  of  a  purchaser,  is  quite  a  different  consideration. 
If  from  a  view  of  the  circumstances  in  the  first  instance,  the  trans- 
action appear  to  have  been  intended  as  a  mortgage,  such  circum- 
stances would  vitiate  the  sale,  and  turn  the  absolute  conveyance 
into  a  mortgage,  and  the  provision  will  be  rejected,  as  repugnant, 
on  the  rule  in  equity  that  the  right,  of  redemption  cannot  be  re- 
strained or  limited.  I  am,  therefore,  of  opinion,  that  these  two 
instruments  constituted  a  mortgage,  and  not  a  conditional  sale — a 
security  for  a  debt,  and  not  a  purchase  of  the  property. 

But  the  difficulty  in  my  mind  has  proceeded  from  the  ejectment, 
and  the  agreement  filed  of  record,  accompanied  by  possession,  ac- 
quiescence, valuable  improvements,  and  the  debt  being  at  that  time 
the  full  value  of  the  property.  This  is  a  very  serious  inquiry, 
giving  to  the  verdict  in  ejectment  only  the  weight  of  a  foreclosure 
in  chancery.  It  is  not  conceded  that  the  mortgagee  may  redeem 
at  any  time,  within  twenty  years  after  foreclosure.  But  this  pre- 
sents a  different  question,  in  a  case  where  the  instrument  is  not 
strictly  a  mortgage  at  law,  and  where  at  law  the  time  is  material, 
a  different  case  from  a  forced  judgment  without  any  terms  stipu- 
lated, or  advantage  conferred  on  the  defendant  by  the  agreement ; 
and  where  there  is  a  benefit  conferred,  and  where  no  advantage 
being  taken  of  the  necessity  of  the  defendant  in  the  ejectment,  a 
full  and  fair  price  is  allowed  for  his  property  ;  as  much,  or  perhaps 


May,  1823.]  OF  PENNSYLVANIA.  449 

(Stoever  v.  Sloever,  for  the  use  of  his  creditors.) 

more  than  it  would  bring  on  a  forced  sale  by  levari,  and  the  de- 
fendant in  the  action  goes  into  possession  of  it  as  his  own,  continues 
in  possession  and  improves  it  as  his  own  under  the  eye  of  the  for- 
mer owner,  that  owner  an  insolvent  debtor,  not  returning  this  as 
his  property  to  his  assignees  after  the  lapse  of  years  ;  when,  if  the 
property  had  been  consumed  by  fire,  ail  would  have  been  his  loss, 
merely  because  the  property  by  fortuitous  circumstances,  has  risen 
in  value,  and  the  bargain  turns  out  a  good  one,  he  should,  having 
made  a  sale,  be  converted  into  a  trustee,  a  bailiff,  and  receiver  of 
the  rents,  and  as  such  to  render  an  account,  is  a  pretence  of  equity 
that  I  cannot  feel,  which  touches  not  my  conscience  as  a  chancel- 
lor, and  my  sense  of  justice  revolts  from  such  a  principle  :  and  if  a 
Court  of  Chancery  would  not  interpose  in  the  plenitude  of  their 
equitable  jurisdiction,  I  would  not  assume  such  jurisdiction,  nor 
ought  it  to  be  confided  to  any  jury.  If  the  estate  had  remained  in 
the  hands  of  Tobias  Stoever,  would  the  chancellor  have  directed 
a  reconveyance  on  payment  of  the  debt,  after  deducting  the  rents 
and  profits  ?  If  he  would,  then  the  plaintiff,  or  his  assignees 
are  entitled  to  recover  the  surplus  beyond  payment  of  the  debt,  in- 
terest, and  all  expenses.  In  Bloodgood  v.  Zeily,  2  N.  Y.  C.  E. 
125,  it  was  decided,  that  if  a  mortgage  be  forfeited,  and  execution 
sued  on  a  judgment  recovered  on  the  bond,  and  a  conveyance  to 
secure  a  portion  of  the  mortgage  money  be  made  of  other  property, 
redeemable  on  paying  a  certain  sum,  at  a  future  day,  such  convey- 
ance will  partake  of  the  original  transaction,  and  be  deemed  a 
mortgage,  and  not  a  defeasible  purchase ;  and,  therefore,  if  after 
lapse  of  the  day  of  payment,  these  lands  be  sold  to  a  bona  fide  pur- 
chaser, though  the  purchase  will  not  be  impeached,  the  grantee 
will  be  compelled  to  account ;  and  the  sum  at  which  the  land  sold, 
with  interest,  he  will  be  responsible  for,  though  the  grantor  did  not 
demand  a  redemption  for  more  than  five  years  after  the  day  of  re- 
payment. Where  the  mortgagee  proceeds  by  ejectment,  provision 
is  made  by  statute  of  7  G.  2,  "  that  in  all  actions  at  law,  relating  to 
mortgages,  on  moneys  secured  by  bond  and  mortgage,  or  in  eject- 
ments, if  there  is  no  suit  in  equity  to  foreclose,  the  tender  of  prin- 
cipal and  interest  and  costs,  by  persons  having  a  right  to  redeem, 
pending  such  action,  and  (upon  refusal  to  accept,)  bringing  the 
money  into  court  shall  be  deemed  a  satisfaction,  and  the  court  may 
compel  the  mortgagee  at  mortgagee's  costs,  to  assign,  &c."  This 
judgment  in  ejectment  I  consider  as  a  foreclosure,  on  terms  agreed. 
Now  equity  will  not  enlarge  the  time  for  the  mortgagor  to  redeem, 
after  six  years'  acquiescence  under  a  foreclosure,  by  his  own  agree- 
ment ;  especially  if  there  be  any  improvement  on  the  estate.  Lant 
v.  Crisp,  15  Vin.  469. 

So  there  shall  be  no  redemption  after  long  possession,  settlement 
made,  and  estate  improved.  A  note  was  given  at  the  time  of  the 
release  of  an  equity  of  redemption,  that  the  releasor  should  have 
land  re-conveyed  to  him  upon  payment  of  what  was  given  for  the 

vol.  ix.  3  L 


450  SUPREME  COURT  [Lancaster, 

(Sloevcr  ».  Stoever,  for  the  use  of  his  creditors.) 

land,  within  a  year ;  such  payment  having  been  neglected  for  several 
years,  it  was  held,  there  should  be  no  redemption. 

It  is  a  strong  ingredient  in  this  case,  that  the  mortgage  money 
was  nearly  equal  to  the  value  of  the  estate.     There  is  no  general 
rule  in  chancery  as  to  the  exercise  of  jurisdiction  in  opening  fore- 
closures, either  with  respect  to  the  time  which  will  be  considered 
a  bar,  or  to  the  particular  circumstances  which  will  entitle  a  suitor 
to  the  interposition  of  the  court.     For  cases  of  this  sort  embrace 
such  a  variety  of  considerations,  and  are  frequently  so  complicated 
in  their  nature,  that  each  depends  in  a  great  degree  upon  its  own 
combined  circumstances ;  and  may  rather  be  considered  as  an  in- 
stance of  the  fact,  that  the  court  will  interfere  to  open  a  foreclosure, 
than  as  a  general  rule.     Pow.   on  Mort.  499.     Lant  v.   Crisp,  2 
Eq.  Ab.  599.     2  Br.  P.  C.  Ill,  is  a  case  entirely  apposite  to  this, 
where  the  mortgagee,  in  1781,  entered  into  possession  upon  a  fore- 
closure made  absolute  by  consent,  and  considering  himself  as  having 
an  absolute  estate  in  the  mortgaged  premises,  by  virtue  of  the  de- 
cree, proceeded  to  make  improvements  therein,  by  pulling  down 
buildings  that  were  ruinous.     The  mortgagor,  six  years  after,  in 
1787,  moved  the  court  for  further  time  to  redeem,  and  it  was  so 
ordered,  on  terms :  but  this,  and  several  other  orders  grafted  there- 
on, were  reversed  on  appeal  to  the  House  of  Lords ;  upon  the  ground, 
that  it  was  not  consistent  with  the  practice  of  Courts  of  Equity,  or 
warrented  by  precedent,  to  enlarge  the  time  for  redemption,  after 
the  mortgagor's  acquiescence  for  six  years,  under  a  foreclosure  by 
his  own  consent ;  especially  after  an  alteration  had  been  made  in 
the  estate,  either  by'  pulling  down  the  buildings,  enlarging  them, 
or  otherwise ;  that  the  appellant  had  been  two  years  in  possession 
before  he  began  alterations  on  the  estate,  having  such  a  title  as  would 
satisfy  a  purchaser.     But  Hollingsworth  v.   Fry,  4  Dall.  345,  is 
still  stronger.     There,  in  an  action  of  partition,  brought  by  Hol- 
lingsworth against  Fry,  after  jury  sworn,  a  juror  was  withdrawn, 
and  an  agreement  entered  into,  that  judgment  should  be  entered  on 
that  day  in  Bank,  unless  the  plaintiff,  or  Robert  Ralston  his  assignee, 
should  give  security  to  pay  one  moiety  of  all  the  moneys  expended 
by  the  defendant  in  improvement  of  the  land  in  question  ;  and,  if 
such  security  should  be  given,  then  the  question  of  what  money  the 
defendant  was  entitled  to,  should  be  ascertained  by  three  referees 
mentioned  in  the  agreement,  and  the  money  being  fully  discharged 
and  paid  within  the  period  of  six  months,  judgment  in  partition  to 
be  entered  for  the  plaintiff:  but  if  not  paid,  then  the  defendant  to 
hold  the  mills,  &c.  free  and  discharged  from  the  claims  of  the  plain- 
tiff, and  all  persons  claiming  under  him,  and  judgment  to  be  en- 
tered for  him  in  the  action.     The  plaintiff  gave  the  security  required ; 
the  referees  reported  a  sum  due  to  the  defendant :  a  number  of  ex- 
ceptions were  filed  to  this  report,  &c.  2d  July,  1791.     Judgment 
was  given  on  it  in  the  Supreme  Court.     On  the  26th  September, 
1796,  Hollingsworth  sent  his  son   to  tender  to  the  defendant  the 


May,  1823.]  OF  PENNSYLVANIA.  451 

(Stoever  v.  Stoever,  for  tie  use  of  his  creditors.) 

amount  of  the  report,  which  he  refused  to  accept,  and  filed  his  bill 
on  the  equity  side  of  the  Circuit  Court  of  the  United  States  for 
Pennsylvania  district,  alleging  fraud  in  the  defendant  in  making 
up  the  accounts,  for  a  discovery  and  account,  perpetual  injunction  on 
the  judgment,  partition  and  general  relief.  This  bill  was  dismissed  ; 
and  Paterson,  Justice,  observed,  that  "  the  great  rule  of  inter- 
pretation, both  with  respect  to  deeds  and  contracts,  is,  to  put  such 
a  construction  on  them  as  will  effectuate  the  intention  of  the  par- 
ties, if  such  intention  be  consistent  with  the  principles  of  law.  In 
the  present  case,  there  is  no  difficulty  in  coming  at  the  intention, 
as  it  is  clearly  and  forcibly  expressed  in  the  agreement,  and  is  ca- 
pable of  receiving  one  construction  only.  The  time  of  payment  is 
made  a  substantial,  and  not  a  mere  formal  circumstance.  It  enters 
into  the  essence  of  the  contract,  and,  therefore,  must  be  observed. 
The  court  cannot  decree  against  the  legal  and  express  stipulation  of 
the  parties  themselves.  The  situation  of  the  parties,  the  nature  of 
the  property,  and  the  speculative  spirit  of  the  project,  were  pow- 
erful inducements  for  drawing  up  the  agreement  in  the  plainest 
and  strongest  terms,  so  as  to  leave  no  doubt  of  the  intention, 
and  to  render  the  time  of  performance  a  cardinal  point.  Again } 
if  the  agreement  would  admit  of  another  construction,  the  com- 
plainant comes  too  late  to  avail  himself  of  it.  The  door  of  equity 
cannot  remain  open  for  ever.  The  complainant  did  not  make 
a  tender  of  the  money,  till  the  lapse  of  five  years  after  the  termi- 
nation of  the  time  limited  by  the  contract.  So  far  was  he  from 
using  legal  diligence,  that  he  has  been  guilty  of  gross  delay.  In 
cases  of  the  present  kind,  equity  will  not  suffer  a  party  to  lie  by, 
till  the  event  of  the  experiment  shall  enable  him  to  make  his  elec- 
tion with  certainty  of  profit  one  way,  and  without  loss  any  way. 
This  mode  of  procedure  was  unfair,  contrary  to  natural  justice,  and 
in  exclusion  of  mutuality." 

In  the  present  case,  the  agreement  was  as  strong  as  the  law 
could  make  it.  It  was  an  agreement  made,  drawn  up,  and  signed 
by  the  counsel.  If  there  had  been  any  undue  advantage  taken  of 
the  defendant's  necessities;  if  the  mortagage  money  was  greatly  in- 
adequate to  the  fair  value  of  the  property ;  if  it  would,  on  a  sale  on 
a  levari  facias  have  brought  a  much  greater  sum,  the  remedy  of 
the  defendant  on  the  return  of  the  habere  facias  possessionem 
would  have  been  to  have  laid  the  equity  of  his  case  before  the  judges 
of  that  court,  who,  if  they  thought  proper,  might  have  interposed. 
But  he  suffered  himself  to  be  put  out  of  possession,  and  did  not 
avail  himself  of  an  appeal  to  the  discretion  of  that  court,  but  acqui- 
esced for  years.  This  circumstance  was  considered  of  importance 
in  Hollingsworth  and  Fry. 

If  the  grantee  of  land  subject  to  power  of  redemption,  have  not 
all  the  remedies  of  mortgagee,  the  conveyance  will  not  be  consi- 
dered as  pignoratitious,  but  as  a  conditional  sale :  the  first  being 
subject  to  redemption,  the  second  not.     By  the  subsequent  agree- 


452  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

ment  if  the  property  sunk  in  value,  Tobias  would  have  no  remedy 
for  the  difference.  He  takes  the  risk  on  himself.  It  assumes  a 
different  character.  The  liabilities  with  regard  to  each  other 
changed.  By  the  first  agreement,  Tobias  did  not  take  all  the  risk 
himself.  By  the  second  he  did.  It  would  be  against  all  equity 
that  Tobias  should  be  exposed  to  all  the  loss,  while  Frederick  would 
enjoy  all  the  good. 

I  am,  therefore,  of  opinion,  that  this  agreement  of  record,  with 
the  subsequent  act  of  record  by  Frederick,  in  his  return  of  proper- 
ty when  he  obtained  the  benefit  of  the  insolvent  law,  and  the  ac- 
quiescence in  the  sale  by  him  and  his  assignees,  the  possession  and 
alteration  of  the  property  by  Tobias,  and  the  improvements  made 
would  be  binding  on  Frederick,  and  on  his  assignees.  It  is  observed, 
that  the  assignment  was  not  a  clandestine  one  between  the  bro- 
thers, but  an  open  one  in  a  court  of  record,  in  an  adverse  suit,  of 
which  the  assignees  must  be  presumed  conusant;  and  I  think  it 
would  be  against  all  conscience  that  Frederick  or  his  creditors 
should,  after  the  acquiescence,  where  any  injury,  destruction  or  de- 
terioration of  the  property  would  be  at  the  risk  of  Tobias,  reap  the 
banefit  of  a  rise  in  the  property,  while  they  remained  unaffected  by 
any  fall ;  and  as  there  was  no  mutuality,  so  there  is  no  equity.  The 
opinion  of  the  court  on  many  of  the  questions,  particularly  as  to 
the  effect  of  the  defeasance,  constituting  the  transaction  a  mortgage, 
and  not  a  conditional  sale,  was  correct.  But  the  answer  to  the 
fourth  question  of  the  plaintiff  below,  which  went  to  the  root  of  the 
plaintiff's  claim,  was  radically  erroneous.  For  we  must  suppose  the 
question  put  to  the  court,  to  have  relation  to  the  judgment  confess- 
ed in  this  ejectment,  and  to  the  agreement  of  the  parties  in  such 
case ;  under  such  circumstances  it  never  can  be,  that  the  mortgagor 
has  20  years  to  redeem. 

We,  however,  are  to  consider  whether  the  parolproof  was  admis- 
sible, and  if  admissible,  what  effect  it  ought  to  have.  In  one  point  of 
view,  it  was  clearly  admissible,  as  evidence  to  show  a  prolongation 
of  the  time  of  redemption,  and  to  lessen  the  effect  of  the  acquies- 
cence. The  evidence  was,  at  least  in  that  point  of  view,  relevant. 
Nor  has  the  plaintiff  in  error  succeeded  in  snowing,  that  any  of  the 
witnesses  were  incompetent.  This  evidence  should  go  to  the  jury, 
as  showing  an  understanding  between  the  brothers,  that  advantage 
was  not  to  be  taken  of  the  lapse  of  time.  It  might  have  caused  Fre- 
derick and  his  assignees  to  delay  a  tender  of  the  money,  and  so  far 
would  be  fraudulent.  This  evidence  was  weakened  by  the  act  of 
Frederick  in  not  returning  the  property,  or  noticing  it  any  way  in 
his  schedule.  This  would  be  powerful  evdence  to  show,  that  the 
agreement  was  final.  For  no  man  would  pretend  to  say,  that  Fre- 
derick Stoever  could  be  indicted  for  perjury,  in  not  returning  it ; 
and  the  notice  of  Frederick  Stoever  to  purchasers,  connected  with 
the  agreement,  and  with  his  omission  to  return  it,  though  not  ope- 
rating as  a  bar  to  creditors,  yet  is  persuasive  evidence  to  show  a 


May,  1823.]  OF  PENNSYLVANIA.  453 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

dereliction  and  abandonment,  and  to  disprove  the  existence  of  any- 
subsisting  agreement  to  redeem,  and  that  the  lapse  of  time  was  con- 
sidered as  peremptory :  which  it  certainly  is  on  every  foreclosure 
by  consent  and  time  given,  unless  when  the  estate  is  of  so  much 
greater  value  than  the  incumbrance,  as  to  show  an  advantage  taken 
of  the  mortgagor's  necessities :  so  gross  an  inadequacy  would  call  for 
the  interposition  of  chancery,  on  that  ground  alone.  I  am  inclined 
to  think  that  these  subsequent  declarations  would  not  amount  to  a 
contract,  or  give  a  new  cause  of  action,  as  they  would,  unconnect- 
ed with  the  former  transaction,  be  merely  gratuitous,  and  would 
not  form  any  consideration,  either,  legal,  equitable,  or  moral,  on 
which  to  ground  an  assumpsit,  but  that  the  whole  matter  is  open  to 
inquiry,  and  that  it  would  be  a  fact  for  the  jury  to  decide,  whether 
there  was  evidence  to  satisfy  their  minds,  that  the  time  of  redemp- 
tion was  prolonged  by  mutual  agreement,  and  that  the  defendant 
in  error  and  his  creditors'  acquiescence  was  occasioned  by  these 
declarations.  For  if  Tobias  acted  upon  it  as  a  redeemable  interest, 
and  Frederick  and  his  creditors,  did  not  abandon  the  right,  but  were 
lulled  into  security  by  the  declarations  of  Frederick,  I  think  equity 
would  still  so  decree.  Some  of  the  acts  of  Tobias  are  quite  in  con- 
sistent with  this,  his  repairs,  improvements,  additional  buildings, 
and  certainly  the  conduct  of  Frederick  and  his  assignees  are  incon- 
sistent with  this.  Their  parol  declarations,  if  the  agreement  was 
fair,  would  not,  after  this  lapse  of  time,  improvements  made,  where 
the  incumbrance  was  nearly  equal  to  the  value  of  the  property, 
merely  because  from  adventitious  circumstances,  the  property  rose 
in  value,  be  a  ground  of  relief  in  chancery.  Nor  ought  they  in 
this  action,  which  is  in  the  nature  of  a  bill  in  equity;  unless  the  lapse 
of  time  was  occasioned  by  these  declarations. 

Bill  to  redeem  after  decree  of  foreclosure  15  years  before,  sug- 
gesting fraud  and  surprise  in  obtaining  the  decree,  and  a  parol  de- 
claration both  before  and  after  the  decree,  that  the  mortgagee  was 
willing  to  take  his  principal,  interest  and  costs,  and  quit  the  estate ; 
defendant  pleaded  the  decree,  and  denied  the  fraud.  Depositions 
of  several  witnesses  were  read  to  prove  such  a  parol  declaration  by 
the  mortgagee.  Bill  dismissed  with  costs,  the  chancellor  declaring 
it  would  be  dangerous  to  open  decrees  on  such  parol  declarations. 
7  Vin.  398.  The  clause  respecting  a  sale  which  might  be  occasion- 
ed in  three  years  and  three  months,  by  the  death  of  either  Tobias 
or  Frederick,  and  where  provision  is  made,  that  the  surplus  should 
be  paid  to  Frederick,  and  the  deficiency  made  up  to  Tobias,  does 
not  relate  to  any  subsequent  sale,  and  has  no  bearing  on  the  ques- 
tion further,  than  to  show,  that  it  was  considered  as  a  security,  and 
nothing  more.  For  if  the  lot  sold  for  more  than  £1800,  and 
interest,  Freerick  was  to  have  it ;  if  less,  Tobias  was  to  be  paid 
the  amount  of  his  debt  by  Frederick.  Thus  stamping  the  instru- 
ment with  the  seals  of  a  mortgage,  and  not  with  the  impressions  of 
a  conditional  sale.     It  is  of  some  importance  to  inquire  whether, 


454  SUPREME  COURT  [Lancaster, 

(Stoever  v.  Stocvcr,  for  the  use  of  his  creditors.) 

under  these  two  instruments,  Tobias  could  have  brought  a  scire 
facias  under  the  act  of  assembly.  This  is  the  criterion  between 
mortgages  and  conditional  sales,  a  redeemable  quality  in  the  grant, 
and  right  to  exact  the  whole  money,  if  the  property  was  of  less 
value  than  the  money  advanced. 

This  court  are  of  opinion,  that  the  agreement  rendered  the  estate 
defeasible,  and  both  instruments,  the  conveyance  and  defeasance, 
constitute  a  mortgage.  The  objection  is  a  technical  one,  that  it  is 
not  expressed  that  the  conveyance  should  be  void  on  payment  of 
the  money  secured  in  three  years,  but  that  on  such  payment  the 
grantee  shall  re-convey.  The  defeasance  expressly  recites  the  con- 
veyance to  be  a  security  for  money  due.  It  is,  therefore,  manifest, 
that  the  land  conveyed  was  intended  as  a  pledge  only ;  and  not- 
withstanding the  manner  of  the  grantor  receiving  back  the  pledge 
on  his  payment  of  the  money,  is  by  a  re-conveyance,  yet  the  nature 
of  the  conveyance  remains  the  same.  It  is  not  absolute,  but  con- 
ditional, and  must  be  considered  as  a  mortgage,  which  the  parties 
could  by  no  terms  render  irredeemable.  See  Erskine  v.  Town- 
send,  2  Mass,  497.  But  they  consider  the  agreement,  the  eject- 
ment, the  possession  taken  immediately,  the  improvements  made  by 
Tobias,  the  acquiescence  of  Frederick  and  his  creditors,  present  such 
a  case,  as  that  a  Court  of  Chancery  would  not  interpose  ;  and  that 
the  plaintiff  has  no  cause  of  action,  unless  the  jury  were  satisfied, 
from  the  whole  evidence,  that  there  was  a  distinct  agreement  by 
Tobias,  to  enlarge  the  time  of  redemption,  and  that  in  consequence 
of  this  agreement  they  rested  in  security — in  one  word,  that  Tobias, 
Frederick,  and  the  assignees  of  Frederick,  acted  upon  this,  always, 
as  a  redeemable  interest;  that  Frederick  and  his  assignees  were 
lulled  into  security  by  Tobias's  agreement,  a  distinct  agreement 
subsequent  to  his  obtaining  the  possession,  and  not  mere  loose  con- 
versations of  the  gratuitous  intentions  of  Tobias. 

The  action  is  properly  brought  in  assumpsit.  In  no  other  form 
could  it  be  supported.  If  there  was  a  Court  of  Chancery,  inde- 
bitatus assumpsit  for  money  had  and  received,  would  lie  in  such  a 
case  as  this.  That  action  is  in  the  nature  of  a  bill  in  equity,  in 
Avhich  the  plaintiff  can  recover  every  thing  which  in  equity  and 
good  conscience  the  defendant  ought  to  refund.  But  where  there 
is  no  Court  of  Chancery,  and  where  there  is  no  covenant  or  agree- 
ment under  seal  to  pay  the  surplus  after  discharging  the  mortgage, 
it  is  the  only  appropriate  action. 

But  there  are  two  counts ;  the  first  certainly  is  unnecessary,  and 
whatever  is  unnecessary  is  always  exposed  to  danger.  The  conside- 
ration on  the  special  contract,  was  altogether  past.  It  was  in  conside- 
ration that  plaintiff  had  before  that  time  sold  and  conveyed  to  defen- 
dant, he  then  assumed  upon  himself,  &c.  But  this  might  be  cured  by 
verdict.  For  the  rule  of  law  is  that  a  past  consideration  is  not  suffi- 
cient to  support  a  subsequent  promise,  unless  there  was  a  request  of 
the  party  express  or  implied,  at  the  time  of  performing  the  consid- 


May,  1823.]  OF  PENNSYLVANIA.  455 

(Stoever  v.  Stoever,  for  the  use  of  his  creditors.) 

eration.  Where  there  was  an  express  request,  it  would  be  at  all 
times  sufficient  to  support  a  subsequent  promise.  Where  there  is 
a  verdict,  a  request  would  be  implied.  Osborne  v.  Rogers,  1  Wms. 
Saund.  in  Notes,  264.  But  this  special  count  is  at  variance  with 
the  proofs  in  the  cause,  and  with  the  whole  controversy  between 
the  parties.  It  is  not  because  the  plaintiff  sold  and  conveyed  his 
land  to  the  defendant,  that  he  claims  this  money  but  because  he  did 
not  sell  but  mortgaged. 

But  there  is  one  objection  to  this  action,  that  has  not  been  answer- 
ed, and  it  is  because  it  could  not  be  answered  ;  for  all  that  was  de- 
bateable  has  been  well  argued.  That  is,  that  the  action  could  not 
be  supported  by  Frederick  Stoever.  By  the  assignment,  under  the 
insolvent  debtor's  act,  the  property  passed  instantly  to  the  assignees, 
was  transferred  to  them ;  and  they  are  authorized  to  sue  in  their  own 
names. 

An  insolvent  debtor,  who  has  made  a  general  assignment  of  his 
property  cannot  maintain  an  action  in  his  own  name,  where  the  cause 
of  action  accrued  previously  to  the  assignment.    Young  v.  Willing,  et 
al.  2  Dall.  276.     Thus,  one  discharged  as  an  insolvent  debtor,  on 
assigning  all  his  property  to  trustees,  cannot  support  an  ejectment 
for  land  previously  vested  in  him,  though  his  trustees  have  not  given 
bond  pursuant  to  the  act  of  4th  April,  1798.      Willis  v.  Row,  3 
Yeates,  452.     The  interest  which  Frederick  had,  if  any,  was  an 
equity  of  redemption,  which  passed  to  his  assignees.     The  trustees 
have  not  released  to  him  :  the  debts  not  being  paid,  they  could  not. 
It  would  be  a  fraud  on  the  creditors.     Though  the  surviving  trus- 
tees have  joined  in  this  instrument,  it  is  not  in  the  character  of  trus- 
tees, but  of  creditors.     The   assignment  is  not  by  the  body  of  the 
creditors,  but  only  some  individuals,  and  it  is  for  their  use,  which 
is  in  fraud  of  the  other  creditors,  and  beyond  the  scope  of  the  au- 
thority of  insolvent  assignees.     But  if  they  had  assigned  as  trus- 
tees, if  all  the  creditors  had  assigned,  and  empowered  him  to  sue 
in  his  own  name,  this  would  not  authorize  him  to  bring  the  action 
in  his  own  name.     The  right  to  an  equity  of  redemption  might  be  a 
transferrable  interest,  and  the  person  entitled  might,  on  tender  of  the 
mortgage  money,  bring  an  action  in  his  own  name.     But  when  this 
assignment  was  made,  and  power  of  attorney  given,  it  was  a  right 
to  recover  a  sum  of  money.   They  could  no  more  authorize  Frederick 
Stoever  to  bring  an  action  in  his  own  name,  then  they  could  a  stran- 
ger.    The  assignee  of  a  chose  in  action,  must  always  bring  the 
action  in  the  name  of  the  assignor,  unless  where  positive  law  has 
declared  he  may,  or  the  instrument  is  negotiable.     The  legislature 
only  can  confer  this  authority :  the  assignor  cannot.     It  cannot  be, 
that  two  different  persons  possessed  each  a  right  to  prosecute  the 
same  action  in  his  own  name. 

For  these  reasons  the  judgment  is  reversed. 


INDEX 


TO 


THE    PRINCIPAL    MATTERS. 


ACTION. 

See  Former  Recovery,  I.     Insol- 
vent, 1.     Assumpsit. 

1.  An  action  at  law  is  maintainable 
in  Pennsylvania  on  a  decree  of  a 
Court  of  Equity  in  Tennessee  for 
the  payment  of  money.  Evans  v. 
Tat  em.  252 

2.  In  such  action  the  pleas  of  nil  de- 
bet and  nul  tiel  record  are  both 
bad  on  general  demurrer.  lb. 

3.  If  the  defendant  mean  to  deny  the 
existence  of  such  decree,  he  may 
frame  a  plea  to  meet  the  averment 
of  the  decree  in  the  declaration, 
and  such  plea  must  conclude  to 
the  country.  lb. 

ADMINISTRATION  BOND. 

See  Assignment  of  Breaches,  1. 
Jeofail,  1,  2,  3. 

1.  An  equitable  defence  for  the  par- 
ties in  an  administration  bond 
founded  on  the  negligence  of  par- 
ties in  not  citing  the  administra- 
tors is  proper  in  a  scire  facias  after 
judgment  for  the  penalty,  but  not 
in  a  suit  on  the  bond  itself.  Carl 
v.  The  Commomoealth.  63  j 

vol.  ix.  3  M 


ADMINISTRATOR. 

See  Executor  and  Administrators. 


AGENT. 

1.  If  an  agent  employed  to  bid  for 
the  vendor  at  a  public  sale,  at  a 
limited  price,  exceed  his  authority, 
he  is  considered  as  making  the 
purchase  on  his  own  account,  and 
may  be  sued  as  purchaser.  Hamp- 
ton v.  Speckenagle.  212 


AMENDMENT. 

1 .  Where  there  is  a  general  verdict 
on  several  counts,  the  court  can- 
not amend  the  judgment  by  enter- 
ing it  specially  on  one  count  and 
leaving  the  other  count  without 
a  judgment,  though  they  might 
amend  the  verdict  and  then  make 
the  judgment  correspond.  Paul 
v.  Harden.  23 

2.  An  omission  in  a  levari  facias  of 
the  command  to  levy  the  debt  is 
a  clerical  mistake,  and  may  be 
amended,  after  error  brought,  by 
the  court  above.  Peddle  v.  Hol- 
linshead.  277 


456 


INDEX. 


APPEAL. 

See  Divorce,  1 . 

1.  A  corporation  must  give  absolute 
security  for  the  debt,  interest,  and 
costs,  on  appealing  from  the  judg- 
ment of  an  alderman  against 
them.  If  the  security"  be  for  less, 
the  appeal  may  be  dismissed.  Cer- 
mantoion  and  Perkiomen  Turn- 
pike Company  v.  NagJee.       227 

ARREST. 

1.  A  witness  attending  before  a  ma- 
gistrate to  give  his  deposition,  un- 
der a  rule  of  the  court  in  a  suit 
depending,  will  be  discharged,  if 
arrested  on  his  return  from  the 
magistrate's  office,  under  a  writ 
from  the  District  Court  of  the 
United  States  in  a  suit  for  penal- 
ties.     United    States   v.   Edme. 

147 

2.  Such  application  may  be  made  in 
the  absence  of  the  defendant,  on 
the  affidavit  of  his  attorney,  and 
after  bail  given.  lb. 

ASSIGNMENT. 

1.  If  creditors  release  under  an  as- 
signment by  the  debtor  in  trust  to 
pay  their  respective  demands  in 
full,  the  surplus  to  go  to  the  debt- 
or, and  the  fund  prove  sufficient 
to  pay  the  whole  debt  and  part  of 
the  interest  up  to  the  payment  of 
the  last  dividend,  they  are  en- 
titled to  receive  such  interest. 
Scott  v.  Morris.  123 

2.  An  assent  to  an  assignment  to 
absent  persons  will  be  presumed, 
when  it  is  made  for  a  valuable 
consideration,  and  is  beneficial  to 
them.     North  v.  Turner.        244 

3.  An  assignment  of  personal  pro- 
perty by  which  the  right  of  pro- 
perty passes,  draws  after  it^n  con- 


structive possession,  on  which  the 
assignee  may  maintain  trespass. 

lb. 

ASSIGNMENT  OF  BREACHES. 

See  Jeofail,  1,  2,  3. 

1.  In  a  suit  on  an  administration 
bond  it  is  sufficient,  after  verdict, 
if  one  of  the  breaches  is  well  as- 
signed, for  the  penalty  is  then  for- 
feited. Carl  v.  The  Common- 
wealth. 63 

ASSUMPSIT. 

See  Former  Recovery,  1.     Evidence, 
17.     Partners,  1. 

1.  Laying  a  consideration  executed 
in  assumpsit,  without  a  previous 
request,  is  bad  on  demurrer,  but 
is  cured  by  verdict.  Stoever  v. 
Stoever.  434 

2.  On  a  mortgage  of  land  with  au- 
thority to  the  mortgagee  to  sell 
after  a  certain  time,  and  to  pay 
the  surplus  if  any,  after  satisfying 
the  debt,  to  the  mortgagor,  if  there 
is  no  covenant  or  special  agree- 
ment to  pay,  indebitatus  assumpsit 
lies  for  money  had  and  received, 
for  a  surplus  arising  from  the  sale. 

lb. 

AUDITORS. 

1.  The  compensation  to  the  auditors 
of  the  county  of  Philadelphia  for 
settling  the  accounts  of  the  guar- 
dians of  the  poor  of  the  city  and 
districts  is  to  be  paid  out  of  the 
county  treasury.  Commonwealth 
ex  relatione  Putt  on  v.  County 
Commissioners.  251 

BAIL. 

I.  Special  bail  has  until  the  quarto 
dip  post  to  surrender  the  princi- 


INDEX. 


453 


pal.     MClurg  v,  fV luting's  spe-  4. 
cial  bail.  24 

2.  If  the  principal  be  in  court  within 
the  four  days  ready  to  be  surren- 
dered, and  the  court  on  a  rule  to 
show  cause  why  he  should  not  be 
surrendered,  hold  the  matter  under 
advisement,  without  committing 
the  principal,  he  may  be  surren- 
dered, when  the  court  make  the 
rule  absolute,  although  the  four 
days  have  expired.  lb. 

3.  Query.  Whether  an  order  for  an 
exoneretur  be  the  subject  of  writ 
of  error'?  lb. 


BARON  AND  FEME. 
See  Husband  and  Wife. 


BILLS  OF  EXCHANGE  AND 
PROMISSORY  NOTES. 

See  Judgment,  3.     Payment,  2. 

1.  Payment  of  a  part  of  a  check  by 
the  drawer  after  it  becomes  due 
dispenses  with  the  necessity  of 
proving  a  demand  on  the  bank  in 
a  suit  against  him.  Levy  v.  Pe- 
ters. 125 

2.  So,  it  seems,  would  a  payment 
of  part  before  the  check  becomes 
due.  lb. 

3.  The  plaintiff  cannot  by  volunta- 
rily giving  credit  for  part  payment 
evade  the  necessity  of  proving  a 
demand  on  the  drawee,  if  the  de- 
fendant disclaims  such  credit,  and 
insists  on  the  want  of  a  demand. 
But  if  the  defendant  acquiesces  in 
such  credit  and  insists  that  the 
whole  has  been  paid,  and  relies  on 
length  of  time  and  other  circum- 
stances to  discharge  him  altoge- 
ther, he  thereby  admits  a  part  pay- 
ment, lb. 


In  a  suit  against  the  maker  of  a 
promissory  note  made  payable 
without  defalcation  by  an  indorsee 
to  whom  it  was  passed  for  & 
valuable  consideration  and  in  the 
course  of  business,  evidence  can- 
not be  given  by  the  defendant 
under  the  plea  of  payment  of  a 
failure  of  the  consideration  for 
which  the  note  was  given,  though 
such  note  be  not  dated  in  Phila- 
delphia city  or  county,  nor  dis- 
counted by  a  bank,  nor  deposited 
in  a  bank  for  collection.  Lewis 
v.  Reader.  193 

On  a  guaranty  of  a  promissory 
note,  drawn  and  indorsed  by 
others,  if  the  drawer  and  indorser 
are  insolvent  when  the  note  be- 
comes due  this  would  prima  facie 
be  evidence  that  the  guarantor 
was  not  prejudiced. 
On  a  guaranty  of  a  promissory 
note,  drawn  and  indorsed  by 
others,  if  the  drawer  and  indorser 
are  insolvent  when  the  note  be-' 
comes  due,  this  would  prima  fa- 
cie be  evidence  that  the  guarantor 
was  not  prejudiced,  and  therefore 
the  giving  him  notice  of  non-pay- 
ment, is  in  such  case  dispensed 
with.  Gibbs  v.  Cannon.  198 
If  notice  be  alleged  in  the  decla- 
ration it  is  not  incumbent  on  the 
plaintiff  to  prove  it.  lb; 

If  a  note  be  drawn  and  indorsed 
for  the  accommodation  of  the  in- 
dorser, and  a  bond  of  indemnity 
be  given  by  the  indorser  to  the" 
maker,  the  holder  does  not  dis- 
charge the  maker  by  giving  time 
to  the  indorser  after  the  day  of 
payment,  though  the  holder  knows 
When  time  is  given  that  it  was 
a  note  for  the  accommodation  of 
the  indorser.  Bank  of  Montgo- 
mery v.  I  Talker.  229 

BILL  OF  EXCEPTIONS, 

See  Error. 


460 


INDEX. 


BOND. 

See  Administration  Bond,  Jeofail,  1, 
2,  3.  Declaration,  1.  Assign- 
ment of  Breaches,  1.  Sheriff's 
Sale. 

1.  Payment  by  the  obligor  to  the 
obligee  without  notice  of  any  as- 
signment of  the  bond  are  good. 
Brindle  v.  Mllvaine.  74 

2.  A  declaration  stating  a  bond  ex- 
ecuted by  four,  payable  when 
three  of  the  obligors  should  be 
required  is  good.  Carl  v.  The 
Commonwealth.  63 


BOND  AND  WARRANT. 
See  Mortgage,  1. 

CHECK. 

See  Bills  of  Exchange. 

CORPORATION. 

See  Appeal,  1. 

CREDITOR  AND  DEBTOR. 

See  Assignment.     Mortgage. 

COLLATERAL  WARRANTY. 


1.  In  Pennsylvania  a  collateral  war- 
ranty descends  on  the  eldest  son. 
Jourdan  v.  Jourdan.  268 


COMMONWEALTH. 


Sec  Title,  1 . 


COMMON  RECOVERY. 

J.  H.  the  elder  being  seised  in  fee, 
devised  lands  to  his  nephew  W. 
H.  for  life,  without  impeachment 
of  waste,  and  after  his  decease  to 
the  first  son  of  his  body  for  and 
during  his  natural  life  without  im- 
peachment of  waste,  and  after  his 
decease  to  the  heir  male  of  his 
body  lawfully  begotten,  that  is  to 
say  the  first,  second,  third,  fourth, 
and  every  other  son  and  sons,  suc- 
cessively of  said  first  son,  as  they 
shall  be  in  seniority  of  age  and  prior- 
ity of  birth,  and  to  the  heirs  male  of 
body  lawfully  begotten  of  such  the 
first,  &c,  son   and  sons  respec- 
tively;    and   in   default    of   such 
issue  to   the   second  son  of  said 
W.  H.  for  and  during  his  natural 
life,  &c.,  and  after  his  decease  to 
the  heirs  male  of  the  body  of  such 
second  son  lawfully  begotten,  that 
is  to  say,  &c,  (as  before  with  the 
first,)  and  in  default  of  such  issue 
to  the  third,  fourth,  fifth,  and  every 
other  son  and  sons  successively  of 
the  body  of  the  said  W.  H,  one 
after  another  according  as  they 
shall  be  in   seniority  of  age  and 
priority  of  birth,  for  their  natural 
lives,  &c,  and  after  their  deaths, 
&c,  (as  before  with  the  first  and 
second.)    And  for  default  of  such 
issue  to  his  nephew,  A.  H.  for  life, 
&c,     without    impeachment     of 
waste,  and  after  his  decease  to 
the  first  son  of  his  body,  &c,  ex- 
actly as  it  had  been  to  the  issue 
of  W.  H.,  and   for  default  of  all 
such  issue  male  as   aforesaid  to 
the  heirs  of  the  body  of  the  said 
W.  H.,  and   for   default   of  such 
heirs,  then  to  the  heirs  of  the  body 
of  the  said  A.  H.,  and  after  other 
remainders  over  remainder  to  the 
right  heirs  of  the  testator.     The 
will  was  dated  4th  March,  1776-, 


INDEX. 


461 


and  the  testator  died  in  the  year 
1783,  at  which  time  his  nephews 
W.  H.  and  A.  H.  were  both  living 
and  also  the  said  A.  H's.  first  son 
J.  and  second  son  A.  A.  H.  died 
before  his  brother  W.  H.,  leaving 
issue  two  sons  J.  and  A.  and  four 
daughters.  W.  H.  died  without 
issue.  After  his  death,  J.,  son  of 
A.  H.,  conveyed  the  land  by  deed 
of  bargain  and  sale  to  T.  P.  in  fee. 
To  this  deed  A.  was  party,  and  it 
was  declared  to  be  to  make  T.  P. 
tenant  to  the  prsecipe  in  a  com- 
mon recovery  which  was  to  be 
suffered  for  the  purpose  of  vesting 
the  fee  simple  in  J.  H.  It  was  ac- 
cordingly suffered  in  the  Supreme 
Court  at  March  term,  1803,  with 
treble  voucher,  the  said  T.  P.,  J., 
and  A.  being  severally  vouched. 

Held,  that  J.  was  seised  of  an 
estate  for  life  in  possession  with 
contingent  remainder  to  his  sons 
successively  in  tail  mail,  and  that 
A.  had  an  estate  for  life  vested  in 
interest,  with  contingent  remain- 
ders to  his  sons  successively  in 
tail  male,  after  which  a  remainder 
in  tail  general  was  vested  in  J., 
with  remainder  in  fee  simple 
vested  in  J.  and  A.  and  their  sis- 
ters, that  the  recovery  was  well 
suffered,  and  J.  by  it  became 
seised  of  an  estate  in  fee  simple  in 
possession.      Lylc     v.  Richards. 

322 


CONTINGENT  REMAINDERS. 


See  Common  Recovery. 


The  common  law  doctrine  of  for- 
feiture, for  the  purpose  of  barring 
contingent  remainders,  has  been 
extended  to  Poinm/lvania.  Lylc 
v.  Richards.  222 


COSTS. 

See  Orphans'  Court,  3.     Judg- 
ment, 4. 


COURT   OF    COMMON   PLEAS. 

See  District  Court. 

1.  The  Court  of  Common  Pleas  of 
the  county  of  Philadelphia,  have 
original  jurisdiction  in  civil  ac- 
tions, where  the  demand  is  under 
100  dollars,  but  the  plaintiff  can- 
not recover  costs.  Kline  v.  Wood. 

294 


COVENANT. 

See  Pleadings. 

COURT. 

See  Set  Off,  3. 

DEBT. 

1.  A  verdict  for  the  plaintiff  in  debt 
finding  more  than  the  sum  de- 
manded as  debt,  appearing  by  cal- 
culation to  be  for  the  debt  and  in- 
terest, is  informal,  but  may  be 
moulded  into  form  by  considering 
the  surplus  as  damages,  and  is  not 
error.     Friedly  v.  Scheelz.      156 

DEED. 

1.  A  deed  for  land  accepted  by  the 
vendee  after  articles  of  agreement, 
though  it  differ  in  some  respects 
from  the  articles,  is  to  be  consi- 
dered as  expressing  the  ultimate 


460 


1ft  Lm 


intent  of  the  parlies,  where  there 
is  no  misconception  of  the  deed  by 
either  party.     Crotzer  v.  Russel. 

78 


DEFALCATION. 

See  Pleading* 

DEPUTY  SHERIFF. 

See  Sheriff,  1.     Evidence,  15. 
Escape. 


DECLARATION. 

See  Bond,  2. 

J .  If  the  declaration  on  a  bond  for 
the  purchase  money  at  sheriff's 
sale  omit  to  state  a  sale,  it  would 
be  bad  on  demurrer ;  but  if  the 
defendant  go  to  trial  after  pleading 
payment,  and  giving  notice  of  spe- 
cial matter  which  sets  forth  the 
sale,  the  defect  is  cured  by  the 
verdict.     Friedly  v.  Scheetz.  1 56 

2.  A  declaration  in  assumpsit  by  a 
vendor  on  a  contract  of  sale  of 
real  estate,  ought  to  state  a  posi- 
tive assumption  by  the  defendant, 
and  if  the  vendor  contracted  to 
make  a  good  title,  that  he  was 
seised  of  a  good  estate  in  fee 
simple.    Hampton  v.  Speckena^lc. 

212 

3.  It  seems  a  general  agreement  that 
the  plaintiff  was  ready  and  willing, 
and  offered  to  perform  his  part  of 
the  contract,  is  good  after  ver- 
dict, lb. 

4.  If  a  general  verdict  be  given  on 
several  counts,  some  of  which  are 
for  demands  not  within  the  juris- 
diction of  the  court,  it  is  bad  for 
the  whole.     Kline  v.  Wood.     294) 


DEVISE. 

See  Former  Recovery,  1.  Legacy, 
4.  Election,  3.  Evidence,  17. 
Testator,  1. 

1.  A  devise  of  a  lot  with  a  house 
upon  it  to  A.  as  his  own  property, 
and  of  certain  specific  legacies, 
of  which  he  was  not  to  be  master 
till  his  full  age,  and  in  case  he  died 
before  lawful  age,  or  after  such 
age  without  issue,  then  all  and  sin- 
gular the  above  legacies,  or  what 
shall  be  left  thereof,  to  be  sold  and 
divided  among  other  children,  car- 
ries a  fee  simple  in  the  lot  and 
house.     Sloever  v.  Sloever.      434 


DISTRICT  COURT. 


See  Common  Pleas. 


1.  Where  some  of  the  counts  of  the 
declaration  in  an  action  of  assump- 
sit were  for  damages  sustained  by 
the  defendant's  selling  to  the  plain- 
tiff an  unsound  horse  for  the  sum 
of  80  dollars,  and  the  verdict  was 
for  40  dollars,  held  that  the  cause 
of  action  was  not  within  the  ju- 
risdiction of  the  District  Court  for 
the  city  and  county  of  Philadel- 
phia, though  these  courts  averred 
that  the  plaintiff  had  been  put  to 
expense  in  feeding  and  keeping 
the  horse  to  the  amount  of  150 
dollars.     Kline  v.  Wood.         294 

2.  The  District  Court  has  no  juris- 
diction in  case  of  contract,  where 
the  value  of  the  thing  put  in  de- 
mand by  the  plaintiff's  declaration 
is  under  100  dollars.  lb. 

3.  The  District  Court  has  not  ju- 
risdiction wherever  the  plaintiff 
could  not  recover  costs  if  he  had 
sued  in  the  Court  of  Common 
Pleas,  before  the  erection  of   the 


INDEX. 


4  (33 


District    Court,    without   having 
filed  an  affidavit.  lb. 

4.  Query,  what  would  be  the  cri- 
terion to  determine  the  value  of 
the  matter  in  controversy  in 
cases  of  contract,  where  the  award 
of  arbitrators  in  an  action  in 
the  District  Court  is  under  100 
d  ollars  ?  Jb. 


DIVORCE. 


An  appeal  lies  to  the  Supreme 
Court  on  a  decree  of  divorce 
from  bed  and  board  and  alimony 
in  the  Court  of  Common  Pleas, 
under  the  act  of  the  26ih  Febru- 
ary, 1817.   Robbarts  v.  Robbarts. 

191 


DOWER 

See   Election,   3.      Former   Reco- 
very, 1.     Legacy,  4. 


EASEMENT. 


1.  A  possession  to  prevent  a  reco- 
very, or  vest  a  right  under  the 
statute  of  limitations,  must  be 
actual,  continued,  adverse  and 
exclusive.  An  easement  claim- 
ed out  of  the  land  of  another, 
can  never  be  the  subject  of  such 
limitation,  for  it  is  not  constant, 
exclusive  and  adverse:  but  a  con- 
tinued exclusive  possession  and 
enjoyment  with  the  knowledge 
and  acquiescence  of  the  owner 
of  the  inheritance  for  21  years, 
would  be  evidence  from  which  a 
jury  might  presume  a  right  by 
grant  or  otherwise  to  such  case- 
ment.    Cooper  v.  Smith.  26 


EJECTMENT. 

See  Title,  1. 

1.  In  an  action  of  ejectment,  to 
which  the  general  issue  is  plead- 
ed, it  must  appear  that  the  defen- 
dant dispossessed  the  plaintiff,  or 
was  in  the  actual  possession  of 
the  land.     Cooper  v.  Smith.     2G 

2.  The  return  of  the  sheriff  under 
the  act  of  assembly  of  rfpril  13th, 
1807,  is  only  prima  facie  evi- 
dence of  the  possession  of  any 
defendant,  whether  his  name  be 
in  the  writ  of  ejectment  or  be 
added  by  the  sheriff,  and  such 
defendant  may  rebut  it  by  show- 
ing that  he  was  not  in  possession. 

lb. 

3.  Where  the  defendant  in  eject- 
ment has  only  an  equitable  title 
to  hold  real  estate  till  certain  mo- 
neys are  reimbursed,  the  plaintiff 
is  entitled  to  recover  if  such  mo- 
neys are  reimbursed  at  the  time 
of  trial:  but  if  the  defendant  has  a 
legal  title  of  that  description  the 
plaintiff  cannot  recover,  unless 
the  moneys  were  reimbursed  at 
the  institution  of  the  ejectment. 
Thomas  v.  Wright.  87 

i.  A  contract  that  a  person  shall 
occupy  a  house  and  put  it  in  re- 
pair, and  in  consideration  thereof 
should  enjoy  the  property  at  a 
certain  rent  till  the  repairs  were 
reimbursed,  makes  such  person  a 
tenant  from  year  to  year,  and  not 
liable  to  ejectment  when  the  con- 
tract is  ended  without  notice  to 
quit.  lb. 


ELECTION. 


1.  The  doctrine  of  election  holds 
only  where  the  remainders  are 
inconsistent  with  each  other,  not 


4G4 


INDEX. 


where  they  are  concurrent.    Pat- 
terson v.  Swan.  16 

2.  Where  a  number  are  concur- 
rently liable,  they  all  remain  so 
until  satisfaction  actually  received 
from  some  of  them.  lb. 

3.  Bringing  an  action  of  dower 
and  counting  therein,  is  such  an 
election  by  the  widow  as  would 
bar  her  from  claiming  a  share  of 
the  surplus  moneys  arising  from 
land  directed  to  be  sold  by  the 
executor  to  pay  legacies,  even  if 
it  were  to  be  considered  as  un- 
disposed of  residue  of  personal 
estate.   Wilson  v.  Hamilton.  424. 


EQUITY. 

See  Action,  1 . 


ESCAPE. 

See  Sheriff. 

ERROR. 

See  Set  Off,  3.    Bail,  3.    Rules  to 
Plead,  2.     Recognizance,  1. 

1 .  No  writ  of  error  lies  on  an  in- 
quest finding  a   person  to  be  a 
lunatic,  returned 
Common  Pleas. 
Gest,  a  Lunatic 

2.  If  a  bill  of  exceptions  state  that 
the  court  permitted  evidence  to 
be  given  and  then  exception  was 
taken,  on  error  brought,  it  can- 
not be  alleged  that  no  such  evi- 
dence was  afterwards  given.  If 
the  evidence  had  been  withdrawn, 
that  should  be  stated  in  the  bill  of 
exceptions.  Brindle  v.  31' 'II- 
vaine.  74 


to  the  Court  of 
Case  of  John 
317 


ESTATE  TAIL. 

See  Common  Recovery. 

EVIDENCE. 

See  Pleading,  1.     Set  Off,  3. 

1.  In  support  of  an  action  for  mo- 
ney had  and  received,  a  receipt 
signed  by  the  defendant,  for  goods 
deposited  in  his  store  by  the 
plaintiff  is  evidence.  Witherup 
v.HUl.  11 

2.  In  a  suit  against  a  justice  for  not 
certifying  a  recognizance  entered 
into  by  the  plaintiff,  in  conse- 
quence of  which,  the  plaintiff's 
appeal  from  the  judgment  of  the 
justice  was  dismissed,  evidence  is 
admissible  that  the  plaintiff  ten- 
dered bail  to  the  justice  more 
than  six  months  before  the  suit 
against  the  justice, because,  though 
this  was  before  the  six  months, 
the  neglect  to  certify  the  recog- 
nizance may  have  been  within 
that  period.  Prather  v.  Con- 
nelly. 14 

3.  Parol  evidence  of  the  declara- 
tions of  the  grantor  is  admissi- 
ble to  prove  the  identity  of  a  lot 
referred  to  in  a  deed  by  him, 
conveying  certain  "lots  in  the 
town  of  H.  marked  on  the  re- 
corded plan  of  the  said  town," 
notice  having  been  given  to  one 
of  his  executors,  a  defendant  in 
the  suit,  and  he  having  proven 
that  he  never  saw  any  such  re- 
corded plan,  and  the  records  of 
the  proper  county  having  been 
diligently  searched  without  find- 
ing any  recorded  plan.  Patton 
v.  Goldsborough.  47 

4.  Confessions  by  a  grantor  that 
he  had  conveyed  a  certain  lot, 
are  evidence  against  him  and  his 
executors,  of  the  identity  of  the 
lot  referred  to  in  the  deed, 
but  evidence  of  the  declarations 


INDEX. 


465 


or  acts  of  the  grantor  subsequent- 
ly to  his  deed  is  not  admissible  to 
defeat  the  grant,  by  showing  that 
it  was  not  the  lot  referred  to.     lb. 

5.  The  declarations  of  a  vendor  after 
a  sale,  who  is  not  party  to  the 
suit,  are  not  evidence,  especially, 
to  contradict  a  written  instrument. 
Brindle  v.  M'llvaine.  74 

G.  Where  the  defendant  in  a  suit  on 
a  bond  for  part  of  the  purchase 
money  of  land,  sets  up  a  defect  of 
title  and  misrepresentation  as  a 
defence,  a  recovery  in  a  former 
suit  on  another  bond  for  part  of 
the  purchase  money,  on  which  it 
is  alleged  the  same  defence  was 
made,  is  no  reason  why  the  court 
should  reject  the  evidence  of  the 
defendant ;  whether  the  same  mat- 
ters had  been  tried  in  the  former 
action  is  for  the  jury.  Crotzer  v. 
Russell.  8 1 

7.  The  sheriff's  docket  is  not  evi- 
dence to  show  the  time  when  an 
inquisition  was  held  on  a  fi.  fa. 
where  there  is  a  blank  left  in  the 
inquisition,  but  the  time  may  be 
shown  by  parol  evidence.  Tho- 
mas v.  Wright.  87 

8.  In  a  suit  for  money  lent,  an  in- 
dorsement on  a  bond,  given  after 
the  loan  by  the  plaintiff  to  the  de- 
fendant, that  suit  was  brought  on 
the  bond,  is  not  evidence  on  be- 
half of  the  defendant  of  that  fact. 
Lehn  v.  Lehn.  57 

9.  But  an  indorsement  on  the  bond 
of  a  receipt  of  a  sum  equal  to  the 
amount  loaned,  with  interest  to 
time  of  the  receipt,  is  evidence  to 
show  an  extinguishment  of  the 
loan,  and  unless  explained,  is  con- 
clusive, lb, 

10.  The  administration  account  is 
not  evidence  on  behalf  of  the  ad- 
ministrator, to  show  that  there 
was  no  debt  due  from  the  intes- 
tate to  the  plaintiff.  lb. 

1 1 .  In  an  action  by  the  vendor  for 

vol.  iXi  3 


non-performance  by  the  vendee  of 
a  contract  to  purchase  real  estate, 
the  vendor  in  making  out  his  title, 
cannot  give  in  evidence  the  she- 
riff's deed,  without  showing  the 
judgment  and  execution.  Hamp- 
ton v.  Speckeimgle.  212 

12.  An  exemplification  of  proceed- 
ings in  the  Orphans'  Court  to 
value  and  make  partition  of  real 
estate,  is  not  evidence,  unless  the 
whole  record  is  exemplified.       lb. 

13.  Evidence  of  circumstances  to 
show  a  family  arrangement  at  the 
execution  of  deeds  is  admissible ; 
and  a  deed  otherwise  invalid, 
would  be  good  evidence  if  it 
formed  a  component  part  of  such- 
arrangement.  Jourdan  v.  Jour- 
dan.  2G8 

14.  If  a  servant  in  the  course  of  de- 
livering out  goods  to  customers 
make  memoranda,  and  the  same 
night  or  next  day  entries  are  made 
by  the  master  in  books  from  these 
memoranda,  such  books  are  books 
of  original  entries,  and  are  admis- 
sible accompanied  with  the  mas- 
ter's oath  as  evidence  to  charge  a 
customer.    Ingraham  v.  Bockius. 

285 

15.  The  declarations  of  the  deputy 
sheriff  respecting  the  execution  of 
a  writ  made  after  the  return  day, 
but  while  the  writ  is  in  his  hands, 
are  evidence  against  the  sheriff. 
Wheeler  v.  Hambright.  39() 

1G.  Where  the  judgment  below  is 
reversed,  and  a  venire  de  novo 
awarded,  if,  on  another  trial,  the 
opinion  of  the  Supreme  Court  is 
read  to  the  jury  by  one  party,  the 
other  may  read  the  charge  of  the 
court  below,  to  explain  the  opi- 
nion, though  not  as  evidence  of  the 
law    or    fact.      King    v.   Diehl. 

409 

17.  In  an  action  by  the  widow  for 
her  share  of  the  surplus  moneys 
arising  from  the  sale  of  a  tract  of 

N 


46G 


INDEX. 


land  ordered  by  the  testator  to 
be  sold  and  undisposed  of  by  will, 
evidence  is  not  admissible  of  an 
action  of  dower  brought  by  her 
to  recover  her  dower  in  another 
tract  belonging  to  the  testator 
which  is  the  subject  of  a  dif- 
ferent devise.  Wilson  v.  Hamil- 
ton. 424 


EXECUTION. 

See  Amendment,  2.       Mortgage,  1. 
Liberari  Facias. 

1  After  a.Ji.  fa.  has  been  levied  on 
'  real  property  which  has  been 
condemned,  the  plaintiff  cannot 
abandon  these  proceedings,  and 
take  out  a  ca.  sa.  without  the 
leave  of  the  court.  Bank  of  Penn- 
sylvania v.  Latshaw.  9 

2.  Where  a  defendant  entered  bail 
to  entitle  himself  to  a  stay  of  exe- 
cution under  the  provisions  of  the 
act  of  21st  March,  1806,  and  the 
plaintiff  after  the  expiration  of  the 
cesset,  issued  a  fieri  facias  and 
levied  on  the  defendant's  real 
estate,  and  on  the  return  of  the 
writ,  issued  a  scire  facias  against 
the  bail  upon  his  recognizance, 
held,  that  the  plaintiff  was  not 
bound  to  make  his  election  be- 
tween the  defendant  in  the  origi- 
nal action  and  the  bail,  but  might 
pursue  his  remedies  against  both 
or  either,  though  he  could  receive 
but  one  satisfaction.  Patterson 
v.  Swan.  10 

3.  If  the  sheriff  return  to  a  levari  fa- 
cias, "  struck  off  for  a  certain  sum, 
and  the  sheriff  could  not  make  a 
title  therefor,  remains  unsold,"  the 
the  plaintiff  may  issue  a  new  exe- 
cution.   Peddle  v.  Hollingshead. 

277 

4.  The  privilege  of  a  stay  of  exe- 
cution under  the  appraisement 
act  of  28th  March,  1820,  expired 


with  that  act,  and  existed  after- 
wards, in  relation  to  executions 
issued  while  that  act  was  in  force» 
only  as  modified  by  the  act  of  the 
27th  March,  1821.  lb- 

5.  If  the  legislature  give  an  indul- 
gence of  a  stay  of  execution  to  a 
debtor,  it  may  afterwards  modify 
or  withdraw  it.  lb. 

6.  The  court  will  not,  on  motion  to 
set  aside  a  f.  fa.  inquire  into  the 
title  of  a  third  person  who  claims 
the  land  levied  on,  but  will  leave 
him  to  his  ejectment.  Harrison 
v.  Wain.  318 

7.  Nor  will  the  court  in  such  case  in- 
quire into  the  existence  of  liens  on 
the  land ;  though  they  would  ap- 
ply the  proceeds  to  them,  if  valid, 
when  the  money  is  brought  into 
court  by  the  sheriff.  lb. 

8.  If  a  subsequent  judgment  creditor 
buy  in  a  prior  mortgage  and  judg- 
ment, and  under  the  latter  levy 
on  lands  of  the  debtor  not  included 
in  the  mortgage,  with  a  view  \o 
the  payment  of  his  own  judgment 
out  of  the  mortgaged  property,  the 
court  will  not  interfere  on  motion, 
to  relieve  one  claiming  the  land, 
levied  on  under  a  voluntary  con- 
veyance by  directing  the  creditor 
to  proceed  against  the  mortgaged 
premises,  though  it  seems  they 
would  in  favour  of  a  purchaser 
for  a  valuable  consideration.       lb. 


EXECUTORS  AND  ADMINIS- 
TRATORS. 

See  Orphans'  Court.     Former   Re- 
covery, 1.     Legacy,  3. 

I.  If  the  creditor  makes  his  debtor 
executor,  the  debt  is  still  assets 
so  far  as  respects  the  creditors 
of  the  testator,  or  a  residuary  le- 
gatee.    Pusey  v.  Clemson.      204 


INDEX. 


467 


2.  No  rule  can  be  established  as  to 
the  amount  of  commissions  of  exe- 
cutors that  will  suit  every  case. 
In  common  cases  five  per  cent, 
has  been  fixed  as  the  standard  by 
common  opinion  and  understand- 
ing, but  in  the  discretion  of  the 
court  it  may  exceed  or  be  less 
than  that  sum.  lb, 

3.  When  the  value  of  the  estate 
was  near  100,000  dollars,  and  the 
executors  had  little  trouble  or  ha- 
zard, the  care  of  law-suits  being 
intrusted  to  counsel,  who  were 
paid  by  the  estate,  and  there  being 
more  than  sufficient  to  pay  debts, 
and  the  receipts  by  the  executors 
Were  in  large  sums  of  money,  the 
court  held  three  per  cent,  a  reason- 
able allowance.  lb. 

4.  If  an  executor  make  a  compro- 
mise, which  is  intended  for  the 
benefit  of  the  estate,  and  has 
actually  been  for  its  benefit,  he 
ought  not  to  be  charged  with  the 
debt  lb. 

b.  Twelve  dollars  allowed  to  exe- 
cutors as  a  fee  paid  to  an  attorney 
for  stating  and  preparing  their  ac- 
counts, but  nothing  beyond  that 
for  advice  as  to  the  mode  of  stating 
it.  lb. 

6.  Commissions  of  executors  fixed 
at  three  per  cent,  upon  settling  an 
account  to  the  amount  of  37,000 
dollars,  which  principally  con- 
sisted of  bank  shares  transferred 
to  the  legatees,  though  the  execu- 
tors were  also  to  pay  some  annui- 
ties, clothe  and  educate  children, 
and  distribute  some  dividends  of 
bank  shares  in  charities,  there  be- 
ing' no  evidence  of  the  degree  of 
trouble  the  executors  had  had  in 
these  respects.  Joseph  Walker's 
Estate.  223 

7.  The  number  of  executors  is  not 
to  make  any  difference  in  the  rate 
of  "commission.  If  their  trouble 
is   unequal,  a  share  of  the    com- 


mission ought  to  be  assigned  to 
each,  proportioned  to  his  trouble. 

lb. 

8.  Commission  should  be  paid  for 
services  when  rendered,  not  by 
anticipation  for  such  as  may  be 
done  in  future.  lb. 

9.  One  devised  the  residue  of  his 
real  and  personal  estate  after  pay- 
ment of  his  debts  to  the  discretion 
of  his  executors  to  distribute  in 
such  manner  as  they  might  think 
proper,  and  appointed  three  exe- 
cutors, all  of  whom  died  indebted 
to  the  estate,  without  making  any 
distribution.  Held,  that  the  Re- 
gister's Court  might,  in  its  discre- 
tion, appoint  the  son  of  the  sur- 
viving executor,  who  was  an 
administrator  to  his  father,  admi- 
nistrator cum  teslamento  annexo, 
he  being  of  fair  character,  and 
having  given  good  security,  and 
no  claim  being  made  by  any  next 
of  kin,  nor  opposition  by  the 
commonwealth  under  a  claim  by 
escheat,  nor  by  creditors.  Case 
of  Richard  Neaves'  Estate.     187 

10.  A  person  taking  out  letters  of 
administration  in  Pennsylvania, 
may  be  sued  in  Tennessee  for  a 
debt  due  by  the  intestate.  Evans 
v.  Tatem.  252 


EXONERETUR. 

See  Bail,  3. 

FEME  COVERT. 

See  Husband  and  Wife. 


FERRY. 

1.  The  act  of  assembly  of  March 
11th,  1784,  authorizing  John 
Suniral  to  establish  a  ferry  over 


468 


INDEX. 


the  Youghoigany  river,  did  not 
vest  in  him  a  right  to  land  upon 
the  landing  of  any  person  without 
their  consent.     Cooper  v.   Smith. 

26 


FORMER  RECOVERY. 

See  Election,  3.     Evidence,  G. 

1.  A  former  recovery  in  an  action 
for  money  had  and  received  against 
an  executor  by  a  widow  is  only 
prima  facie  evidence  that  the 
whole  amount  with  which  the 
executor  then  charged  himself  in 
the  settlement  of  his  accounts  was 
recovered ;  the  plantiff  may  in 
another  action  recover  moneys  re- 
ceived since  the  bringing  of  the 
former  suit,  though  contained  in 
the  account,  if  they  were  not  be- 
fore recovered.  Wilson  v.  Hamil- 
ton. 424 


GUARANTY. 

Bee  Bills  of  Exchange  and  Promis- 
sory Notes,  5. 


HUSBAND  AND  WIFE. 

1.  The  deed  of  a  feme  covert  \a, 
void,  if  it  do  not  appear  from  the 
certificate  of  her  acknowledgment 
that  she  was  examined  separately 
and  apart  from  her  husband : 
stating  that  she  voluntarily  con- 
fessed thereto,  will  not  cure  the 
defect.  Nor  is  the  parol  evidence 
of  the  magistrate  admissible  to 
show  a  separate  examination. 
Jovrdan  v.  Jourdan.  268 

2.  When  the  deed  executed  by  a 
married  woman  is  void,  parol  evi- 
dence is  admissible  to  show  that 


after  her  husband's  death  she  de- 
livered and  ratilied  it.  lb. 
.  Circumstances  may  be  proved 
from  which  the  jury  may  infer 
such  delivery.  lb. 


JEOFAIL. 

After  verdict,  the  want  of  a  veri- 
fication in  the  assignment  of 
breaches  on  a  bond  is  cured  by 
the  statute  4  and  5  Ann.  c.  16. 
Carl  v.  The  Commonwealth.  63 
,  A  verdict  cures  the  omission  in 
such  breaches  to  state  that  assets 
came  to  the  administrator's  hands. 

lb. 


IMPROVEMENTS. 
See  Roads,  3,  4. 

INCUMBRANCES. 

See  Vendor  and  Vendee,  1,  2. 


INQUISITION. 

The  day  on  which  an  inquisition 
was  taken  is  not  a  matter  of  record 
but  a  matter  in  pais.  Thomas  v. 
Wright  87 


INSURANCE. 

On  the  3d  July,  1818,  A.  who 
was  going  out  supercargo  of  the 
ship  America  on  a  voyage  from 
New  York  to  the  Isle  of  France 
and  Calcutta  and  back,  by  a  writ- 
ing reciting  that  he  was  indebted 
to  B.  in  2500  dollars  engaged  to 
ship  and  consign  to  B.  goods  to 
that  amount,  arising  from  his  out- 
ward commissions,  and  in  case  of 
death  or  any  accident  happening 


INDEX 


469 


to  him  assigned  his  commissions 
on  the  above  voyage,  and  the  pro- 
ceeds thereof  to  B. ;  and  by  ano- 
ther writing  of  the  same  date  au- 
thorized B.  to  make  insurance  for 
2500  dollars  on  his  commissions 
out  and  the  proceeds  thereof  out 
and  home.  On  the  10th  July,  A. 
caused  insurance  to  be  made  in 
New  York  for  4000  dollars  for 
himself  on  commissions  out  and 
home,  and  delivered  the  policy  to 
C.  On  the  15th  August,  B.  had 
insurance  made  by  the  defendant 
in  Philadelphia  for  2500  dollars  on 
commissions  of  A.  valued  at  the 
sum  insured  out,  and  on  the  pro- 
ceeds of  said  commissions  as  in- 
terest might  appear,  homeward, 
with  the  usual  clause,  as  to  a  prior 
insurance.  On  the  voyage  home, 
the  ship  was  wrecked,  and  A. 
drowned :  but  B.  received  an  in- 
voice and  bill  of  lading  of  goods 
consigned  to  him  on  -account  of 
A.  by  the  ship,  amounting  to  1500 
dollars:  some  of  the  goods  were 
saved,  and  claimed  and  removed 
by  the  New  York  underwriters, 
who  paid  part  of  their  policy  on  a 
compromise  with  C.  Held,  1. 
That  this  was  not  a  case  of  a  dou- 
ble insurance,  that  at  New  York 
and  that  at  Philadelphia  being  on 
account  and  for  the  benefit  of  dif- 
ferent persons. 

2.  The  plaintiff  had  an  insurable  in- 
terest. 

3.  He  was  not  bound  to  disclose  to 
the  defendant  the  particular  na- 
ture of  his  interest.  I Tells  v.  The 
Philadelphia  Insurance  Company. 

103 

4.  A  valued  policy  of  insurance  was 
made  of  supposed  profits  on  a 
cargo  of  goods  on  a  voyage  from 
Canton  to  Philadelphia,  free  from 
average,  and  without  benefit  of 
salvage.  The  ship  sailed  from 
Canton  with  a  cargo,  but  in  con- 


sequence of  bad  weather  put  into 
the  Isle  of  France  for  repairs :  part 
of  the  cargo  was  so  much  da- 
maged that  it  was  thrown  over- 
board ;  part  being  also  damaged 
was  sold  and  the  proceeds  re-in- 
vested ;  and  these  with  the  sound 
part  arrived  at  Philadelphia; 
where  it  was  found  that  part  of 
those  considered  sound  was  da- 
maged. The  sound  teas  were 
sold  at  a  considerable  profit,  but 
on  the  whole  cargo  there  was  no 
profit,  and  there  was  a  loss  of 
more  than  fifty  per  cent,  on  the 
whole  goods  shipped.  Held,  that 
the  underwriter  was  discharged. 
Wain  v.  Thompson.  115 


INSOLVENT. 

See  Witness,  6. 

,  An  insolvent  debtor  who  has  as- 
signed his  property,  cannot  sue 
for  a  cause  of  action  existing  at 
the  time  of  the  assignment  in  his 
own  name,  though  empowered  by 
his  creditors,  and  though  the  as- 
signees have  not  acted.  Sloever 
v.  Sloever.  434 


INSOLVENT. 
See  Judgment,  4.     Legacy,   1.      As. 

SIGNMENT. 

1.  The  debtor  is  not  exempted  from 
the  payment  of  interest  by  the 
continued  absence  of  the  creditor 
at  a  distance  from  the  state,  and 
his  not  being  heard  of  for  many 
years.  Therefore,  where  bonds 
were  given  in  Northampton  coun- 
ty for  a  portion  of  a  distributive 
share,  and  the  obligee  was  then 
absent,  and  the  last  that  was 
heard  of  him  afterwards  was,  that 
he  was  at  Natchez,  in  JS0G,  and 


470 


INDEX. 


administration  was  taken  out  of 
his  estate  in  1818,  on  the  pre- 
sumption of  his  death,  it  was  held 
that  the  obligor  was  bound  to  pay 
interest  on  his  bond.  Case  of 
Martin  Shaffer's  estate.  263 

2.  Where  the  defendant  paid  money 
to  the  plaintiff  which  both  parties 
thought  the  plaintiff  was  entitled  to, 
but  it  afterwards  turned  out  that  the 
plaintiff  was  not  entitled  to  it ;  held 
that  interest  ought  not  to  be  paid 
by  the  plaintiff  till  the  defendant 
explained  the  mistake  and  de- 
manded payment.   King  v,  Diehl 

409 


ISSUE. 

1.  The  words,  "and  issue,"  on  the 
docket  suffice  to  cure  any  defect 
of  form  in  joining  issue.  Carle  v. 
The  Commonwealth.  63 


JUDGMENT. 

See  Justices  of  the  Peace.  Abiend- 
kient,  1.  Execution,  6,  7.  Debt, 
1.     Mortgage,  1. 

1.  When  it  appears  by  the  record 
that  after  the  return  of  summons, 
a  rule  was  entered  to  declare,  and 
after  declaring  the  plaintiff  entered 
a  rule  to  plead,  and  signed  judg- 
ment for  want  of  a  plea,  the  judg- 
ment is  regular.  Shaffer  v.  Brobst. 

85 

2.  A  party,  on  taking  a  bond  and 
warrant,  agreed  by  a  separate 
writing  not  to  enter  up  judgment, 
nor  get  it  done  by  any  body  else. 
He  afterwards  assigned  to  ano- 
ther for  a  valuable  consideration, 
without  notice  of  the  agreement, 
who  entered  up  judgment. 


Held,  1.  That  the  judgment  was 
valid. 

2.  That  the  obligee  was  a  good 
witness  to  prove  that  the  assignee 
had  no  notice  of  the  agreement. 
Davis  v.  Ban:  137 

3.  A  judgment  recovered  against  one 
partner  is  a  bar  to  a  subsequent 
suit  against  both,  though  the  new 
defendant  was  a  dormant  partner 
at  the  time  of  the  contract,  and 
was  not  discovered  till  after  the 
judgment.     Smith  v.  Black.    142 

4.  On  affirmance  of  a  judgment  in 
the  Supreme  Court  after  a  writ  of 
error,  interest  is  to  be  charged  on 
the  judgment  below  till  affirm- 
ance, and  then  the  aggregate  is  to 
bear  interest.     JSP  Causland's  Ad- 


ministrators v.  Bell. 


588 


But  the  plaintiff  cannot  in  such  case 
charge  interest  on  the  costs  of  suit 
until  he  pays  them ;  though  on 
payment  he  may  charge  interest 
from  that  time.  lb. 

5.  The  judgment  creditors  of  a  ven- 
dee of  land  who  has  paid  part  of 
the  purchase  money  and  has  pos- 
session of  the  land,  but  has  re- 
ceived no  deed,  are  entitled  to  the 
proceeds  of  the  sale  of  his  title  un- 
der an  execution  in  preference  to 
the  vendor.    Auwerler  v.  Mulhiot. 

397 

6.  On  the  replication  quod  habetur 
fale  recordum,  and   issue   where 

the  record  is  a  record  of  the  same 
court,  the  mere  entry  of  the  judg- 
ment by  the  court,  without  fixing 
a  day,  though  informal,  is  regular 
under  our  practice.  Shore  v. 
Hunt.  404 


JURISDICTION. 

See  District  Court.     Court  of 
Common  Pleas. 


INDEX. 


471 


JUSTICE  OF  THE  PEACE. 

See  Limitations,  2.      Evidence,  2. 

1 .  When  a  justice  of  the  peace  has 
jurisdiction  of  a  case,  his  judgment, 
though  erroneous,  is  binding  on 
the  parties  until  reversed  on  a  cer- 
tiorari or  appeal.  Emery  v.  Nel- 
son. 12 

LANDS. 

See  Taxes,  1. 


LANDLORD  AND  TENANT. 

See  Ejectment.  Purchase  Money,  1. 
Testator,  1. 


LEGACY. 

See  Devise,  1 . 

1.  If  a  legacy  be  payable  in  instal- 
ments, and  the  date  of  the  last  in- 
stalment expires  before  the  testa- 
tor's death,  it  is  to  be  considered 
as  a  legacy  payable  generally,  and 
carries  interest  from  one  year  af- 
ter the  testator's  death.  King  v. 
Diehl.  409 

2.  Where  in  this  state  a  legacy  is 
granted  to  one,  and  afterwards 
over  on  the  happening  of  a  con- 
tingent event,  the  executor  ought 
not  to  pay  to  the  first  legatee 
without  security,  if  required  to 
take  security  by  the  legatees  over; 
and  on  action  brought  by  the  first 
legatee,  the  court  would  require 
security  before   execution  issued. 

lb. 
But  if  such   payment  be  made  with 
the   consent    of    all   parties   con- 
cerned, the  executors  would  not 


be  liable  to  the  legatee  over. 


lb. 


If  a  guardian  pay  to  his  ward  a 
legacy  bequeathed  to  him,  then  to 
others  on  a  contingency,  if  that 
contingency  happen,  the  guardian 
cannot  recover  it  back  as  a  trus- 
tee for  the  legatees  over :  though 
the  legatees  themselves  might  re- 
cover it.  King  v.  Diehl.  409 
.  Where  a  testator  orders  land  to 
be  sold,  and  certain  legacies  to  be 
paid  out  of  the  proceeds,  the  sur- 
plus money  after  the  payment  of 
the  legacies  does  not  go  to  the 
executors  or  next  of  kin,  as  an 
undisposed  of  residue  of  personal 
effects,  but  results  to  the  heir  at 
law.     Wilson  v.  Hamilton.      424 


LIBERARI  FACIAS: 

A  meFe  return  to  a  liberari  by 
the  sheriff,  that  he  had  delivered 
possession  to  the  plaintiff  in  that 
suit,  does  not  vest  the  title  in  such 
plaintiff:  it  is  only  an  authority  to 
enter;  and  he  must  bring  an  eject- 
ment, or  obtain  the  actual  pos- 
session before  it  can  be  considered 
in  an  ejectment  between  others, 
as  a  subsisting  title  in  him.  Tho- 
mas v.  Wright.  8Z 


LIEN. 
See  Taxes,  1. 

LIMITATIONS. 

See  Easement,  1. 

1.  If  there  be  any  thing  in  the  plain- 
tiff's case  which  entitles  him  to 
an  exemption  from  the  operation 
of  the  statute  of  limitations,  he 
ought,  when  the  act  is  pleaded,  to 
set  it  forth  in  his  replication.  If 
he  omit  to  do  so,  and  join  issue  on 


479 


INDEX 


the  pica,  it  is  incumbent  on  him 
to  prove  an  assumption  within  six 
years.     Withemp  v.  Hill.  11 

2.  The  limitation  of  six  months  as 
to  suits  against  justices  of  the 
peace,  contained  in  the  7th  sec- 
tion of  the  act  of  21st  March, 
1772,  may  be  taken  advantage  of 
by  the  justice,  though  not  specially 
pleaded.      Pralhcr    v.    Connelly. 

14 

3..  Defendant  being  arrested  on  a 
promissory  note,  said  that  he  owed 
the  plaintiff  the  money,  and  in- 
tended to  have  paid  him,  but  that 
he  had  taken  ungentlemanly  steps 
to  get  it,  and  as  he  had  taken 
these  steps,  he  would  keep  him 
out  of  it  as  long  as  he  could. 
Held,  that  this  was  not  such  an 
acknowledgment  as  would  take 
the  case  out  of  the  statute  of  limi- 
tations.    Fries  v.  Boissdet.     128 

4.  The  residence  of  a  plaintiff  with- 
in the  State  of  New  York  at  the 
time  when  the  debt  accrued  and 
since,  does  not  bring  him  within 
the  proviso  of  the  act  of  limita- 
tions in  favour  of  persons  beyond 
sea.      Thurston  v.  Fisher.        288 

5.  A  party  entitled  to  the  benefit  of 
the  proviso,  loses  his  privilege 
from  the  time  he  comes  into  the 
state,  and  a  replication  to  a  plea 
of  the  act  of  limitations,  not 
stating  that  the  plaintiff  had  not 
been  in  the  state  within  the  time 
allowed  by  the  act,  is  bad  on  de- 
murrer, lb. 


MANDAMUS. 


i.  The  practice  has  been  not  to  is- 
sue writs  of  mandamus,  except 
from  the  court  which  sits  in  the 
district  in  which  the  persons  re- 
side, to    whom  the  mandamus  is 


to   be   directed. 
v.  Clarke. 


Commonwealth 
59 


MORTGAGE. 

See  Execution,  6,  7. 

1.  If  a  bond  and  warrant  of  attor- 
ney are  given,  accompanying  a 
mortgage,  a  sale  of  the  land  un- 
der a  Jieri  facias  and  venditioni, 
issued  on  the  judgment  entered  up 
under  the  warrant,  avoids  a  lease 
made  by  the  mortgagor  after  the 
mortgage,  but  before  the  entry  of 
the  judgment  on  the  warrant. 
A/'  Call  v.  Lenox.  302 

2.  A  deed  accompanied  with  a  writ- 
ten agreement  between  the  parties 
of  the  same  date,  reciting  that  the 
deed  was  made  for  a  certain  sum 
due  from  the  grantor  to  the  gran- 
tee, or  for  securing  the  payment 
thereof,  and  stipulating  that  the 
grantee  will  not  sell  or  mortgage 
the  property  for  three  years  and 
three  months,  and  will  then  deli- 
ver up  the  deed  to  the  grantor,  if 
the  money  is  repaid  by  instal- 
ments within  that  time,  and  pro- 
viding that  if  either  party  die,  or 
the  premises  must  be  sold  within 
that  time,  and  more  than  the  sum 
due,  and  interest  are  obtained,  the 
surplus  shall  go  to  the  grantor,  but 
if  less,  the  grantor  shall  supply  the 
deficiency — is  a  mortgage.  Sloc- 
ver  v.  Stoever.  434 

If,  however,  the  money  is  equal  to 
the  value  of  the  premises,  and 
the  time  fixed  elapses  without 
payment,  and  the  grantee  brings 
ejectment,  on  which  a  judgment 
is  entered  by  agreement,  stipu- 
lating, that  in  case  of  repayment 
by  a  certain  day,  the  property 
shall  remain  in  the  defendant, 
otherwise,  a  writ  of  habere  facias 
possessionem  to  issue,  and  Ihe 
rents  of  the  interval  to  be   paid 


INDEX. 


473 


to  the  plaintiff,  and  default  of  pay- 
ment being  made,  a  writ  issue,  on 
which  possession  is  delivered  to 
the  grantee,  who  retains  it  and 
makes  improvements,  the  grantor 
acquiescing  by  silence,  and  be- 
coming insolvent,  and  making  no 
return  of  the  premises  as  his  pro- 
perty, the  grantee  is  entitled  to  the 
premises.      Stoever    v.    Sioever. 

434 
But  parol  evidence  is  admissible  on 
behalf  of  the  plaintiff,  suing  for 
the  use  of  his  creditors,  to  show  a 
prolongation  of  the  time  of  re- 
demption, and  to  rehut  the  pre- 
sumption of  acquiescence,  by  the 
declaration  of  the  grantee,  that  he 
intended  after  a  sale,  to  pay  the 
surplus  to  the  creditors  or  children 
of  the  grantor.  lb. 

3.  On  a  mortgage  of  land  with  au- 
thority to  the  mortgagee  to  sell  af- 
ter a  certain  time,  and  to  pay  the 
surplus,  if  any,  after  satisfying  the 
debt  to  the  mortgagor,  if  there  is 
no  covenant  or  special  agreement 
to  pay,  indebitatis  assumpsit,  lies 
for  money  had  and  received  for  a 
surplus  arising  from  the  sale.     lb. 

4.  If  the  question,  whether  mortgage 
or  not  depends  solely  on  writings, 
parol  evidence  is  inadmissible, 
but  if  it  be  admitted,  and  the  ques- 
tion depends  partly  on  that  evi- 
dence, it  should  be  left  to  the  jury, 
whether  it  was  a  mortgage  or  not. 

lb. 


NOTICE. 


See  Evidence,  3. 


Where  three  executors  were  de- 
fendants, who  had  been  notified  on 
a  former  trial  between  the  parties, 
to  produce  a  paper,  and  on  the 
vol.  ix.  3  O 


present  trial,  one  of  them  had  been 
notified,  who  swore  that  he  had 
made  inquiry  of  the  other  mem- 
bers of  the  family,  and  diligent 
search  had  been  made  and  the  pa- 
per could  not  be  found,  and  the 
deed  of  the  testator,  under  which 
the  plaintiff  claimed,  referred  to 
the  paper,  the  notice  was  held  suf- 
ficient.    Patton  v.  Goldsboroucr/i. 

47 


NOTICE  TO  QUIT. 

See  Ejectment. 

ORDER. 
See  Payment,  2„ 

ORPHANS'  COURT. 

See  Evidence,  12. 

1.  It  seems  the  Orphans'  Court  can- 
not decree  the  payment  of  a  dis- 
tributive share,  admitted  by  the 
administrator  to  be  in  his  hands, 
where  his  accounts  are  filed  in 
the  Register's  Office,  and  not 
brought  into  the  Orphans'  Court. 
Flint  ham  v.  For  sy  the.  133 

2.  But  where  the  accounts  of  an 
administrator  are  brought  into 
the  Orphans'  Court,  it  may  decree 
payment  Gf  a  distributive  share 
to  one  heir,  where  there  is  no  dis- 
pute between  him  and  the  ad- 
ministrator as  to  the  balance 
due  him,  although  the  accounts 
are,  on  the  application  of  other 
heirs,   depending  before  auditors. 

lb. 

3.  The  Orphans'  Court  cannot  de- 
cree payment  by  an  administra- 
tor of  the  costs  recovered  in  a 


INDEX. 


suit  brought  against  him  by  an 
heir  in  a  court  of  common  law, 
to  recover  his  distributive  share. 

lb. 


PAROL  EVIDENCE. 


See  Husband  and  Wife,  I,  2.    Mort- 
gage, 2,  4. 


PAYMENT. 


See  Bond,  1 , 


1.  The  lapse  of  less  than  20  years 
may,  with  other  circumstances, 
afford  a  presumption  of  payment 
of  a  bond,  but  without  circum- 
stances, it  must  be  at  least  20 
years  to  raise  the  presumption- 
Henderson  v.  Lewis.  379 

2.  The  possession  by  the  defen- 
dant of  an  order  on  him,  signed 
by  the  plaintiff,  to  pay  money  to 
a  third  person,  whose  receipt  is 
indorsed,  but  not  proved,  if  not 
objected  to  as  evidence  to  go  to 
the  jury,  may  be  charged  by  the 
court  to  be  evidence  of  payment, 
though  not  conclusive.  fVeidner 
v.  Sweigart.  385 


PARTNERS. 


Assumpsit  does  not  lie  by  one 
partner  against  another,  unless 
there  be  an  account  actually  set- 
tled between  themselves,  and  a 
balance  struck.  It  is  not  suffi- 
cient that  the  balance  may  be  de- 
ducted from  the  partnership  books. 
Andrews  v.  Allen  t  241 


PLEADING. 


See   Declaration.     Judgment,   6. 
Recognizance,  1. 


1.  Where  payment  is  pleaded  and 
issue  joined  thereon,  the  short  en- 
try of  set  off  added  thereto,  is 
only  a  notice  and  not  strictly  a 
plea,  and  therefore,  requires  no 
replication.    Henderson  v.  Lewis. 

379 

2.  Where  the  defendant  pleads  pay- 
ment, to  debt  on  bond,  with  leave 
to  give  want  of  consideration,  and 
special  matters  in  evidence,  he  can 
only  give  such  matters  in  evidence 
as  show  that  the  plaintiff  had  no 
right  to  recover ;  but  where  he 
pleads  payment  with  leave  to  give 
defalcation  in  evidence,  he  may 
give  in  evidence  matter  entitling 
him  to  recover  against  the  plaintiff 
under  the  defalcation  act.  King 
Deihl.  409 

3.  In  covenant  on  an  agreement  to 
make  the  plaintiff  a  title  on  a  day 
certain,  in  consideration  of  which 
he  was  to  give  bonds,  if  he  aver 
a  readiness  to  perform,  and  the 
defendant  put  in  issue  by  his  plea 
the  plaintiff's  readiness  to  perform, 
it  is  sufficient  on  the  trial,  if  the 
plaintiff  show  that  the  defendant 
had  no  title  on  the  day  :  he  is  not 
bound  to  show  performance  or 
tender.     Knox  v.  Rinehart.       45 

.  In  an  action  on  a  decree  in  equity 
in  another  state  for  the  payment 
of  money,  the  pleas  of  nil  debet 
and  nul  liel  record  are  both  bad 
on  general  demurrer.  Evans  v. 
Tatem,  252 

.  If  the  defendant  mean  to  deny 
the  existence  of  such  decree,  he 
may  frame  a  plea  to  meet  the 
averment  of  the  decree  in  the  de- 
claration, and  such  plea  must  con- 
clude to  the  country.  lb. 


INDEX. 


475 


POWER. 


.  T.  F.  bv  bargain  and  sale  con- 
veyed  all  the  parts  and  purparts, 
shares  and  dividends,  of  him, 
the  said  T.  F.,  in  the  messuages, 
lots  of  ground,  lands,  ground 
rents,  tenements  and  heredita- 
ments, and  real  estate,  which  his 
father  lately  died  seised  of,  to 
two  trustees  Upon  trust,  that 
they  and  the  survivor,  and  the 
heirs  and  assigns  of  the  survivor, 
should  during  the  natural  life  of 
T.  F.,  let  the  premises,  receive 
the  rents  and  income,  and  pay 
the  surplus,  after  deducting  ground 
rents,  &c,  into  the  proper  hands 
of  T.  F.  and  not  to  any  agent  he 
might  appoint  during  his  natural 
life,  or  apply  the  same  to  his 
maintenance,  and  from  and  after 
his  decease,  in  trust  for  his  chil- 
dren, in  fee  simple,  and  in  case 
he  left  no  children,  then  to  and 
for  the  use  of  the  right  heirs  of 
the  said  T.  F.  forever.  Pro- 
vided always,  that  it  should  be 
lawful  for  T.  F.  with  the  consent 
and  approbation  of  the  said  trus- 
tees or  the  survivor  of  them,  or 
the  heirs  of  the  survivor,  by  any 
deed  under  their  hands  and 
seals,  duly  executed  and  ac- 
knowledged, to  grant  or  convey 
all,  or  any  part  of  the  premises, 
to  such  person  or  persons,  and 
for  such  uses  or  estates  as  the 
said  T.  F.,  with  such  consent 
and  approbation  should  direct, 
limit,  or  appoint.  The  real  estate 
of  the  father  was  afterwards  sold 
by  order  01  the  Orphans'  Court, 
and  with  part  of  the  moneys  paid 
to  the  trustees,  they  purchased  a 
house  in  the  city  of  Philadelphia, 
which  was  conveyed  to  them  on 
the  same  trusts;  the  residue  was 
placed  and  continued  at  interest. 


T.  Fi  made  his  last  will,  (sub- 
scribed by  the  trustees,)  reciting 
their  approbation  and  consent,  tes- 
tified by  their  subscriptions  to  the 
will,  and  devised  to  his  sister, 
M.  F.,  in  fee,  all  the  residue  of 
his  estate,  after  payment  of  debts, 
and  died,  leaving  the  said  M.  F., 
and  the  wives  of  the  plaintiffs, 
with  other  brothers  and  sisters, 
his  heirs  at  law.  Shortly  after- 
wards, the  trustees  executed  a 
deed  to  M.  F.,  in  which,  as  far 
as  the  same  might  be  necessary, 
they  gave  their  consent  and  appro- 
bation to  the  said  devise,  and  con- 
veyed the  estate  to  the  said  M.  F. 
in  fee. 
Held,  that  the  power  reserved  by 
T.  F.  was  not  well  executed,  and 
that  the  plaintiffs  were  entitled 
to  a  share  in  the  house  pur- 
chased by  the  trustees,  and  in  the 
money  at  interest.  Slijer  v. 
Beates.  166 


POSSESSION. 


See  Survey,  2.     Easement,  1. 


PRESUMPTION. 

See  Survey,  2.     Easement,  1.     Pay- 
ment, 1,2. 


PRINCIPAL. 

See  Bail,  3. 

PRIVILEGE. 
See  Arrest,  1. 


476 


INDEX. 


PROMISSORY  NOTE. 

See  Bills  of  Exchange,  and  Promis- 
sory Notes. 


PRODUCTION   OF  PAPERS. 
See  Notice,  1 . 

PROTHONOTARY. 

1.  The  court  will  not  presume  a 
rule  to  have  been  entered  by  the 
prothouotary  of  his  own  mere 
motion.      Shaffer  v.  Brobst.     85 

2.  If  such  were  the  case  the  reme- 
dy is  by  application  to  the  court 
below,  and  not  by  writ  of  error. 

lb. 

PURCHASE  MONEY. 

See  Testator. 

1.  The  owner  of  land  by  a  deriva- 
tive title  from  the  warrantee,  is 
not  personally  liable  for  the  pur- 
chase money:  it  is  a  charge  upon 
the  land.  Case  of  Keyzey,  Exe- 
cutor of  Keyzey.  71 

RECOGNIZANCE. 

1.  A  recognizance  of  bail  in  error, 
is  forfeited  if  the  plaintiff  in  error 
non  pros  the  writ  by  agreement 
with  the  other  party,  provided 
there  be  no-  fraud  or  collusion. 
Share  v.  Hunt,  404 

2.  But  it  seems  fraud  in  non  pros- 
sing  the  writ,  cannot  be  taken 
advantage  of  in  a  suit  on  the  re- 
cognizance,  under  the  plea  of  nul 
tie!  record,  or  payment,  but  ought 
to  be  specially  pleaded.  lb, 


RECORD. 

See  Judgment,  1.     Inquisition,  1. 
Evidence,  1.     Former  Recovery. 


REPLICATION. 
See  Limitations,  5.     Judgment,  6. 

ROADS. 

1.  The  description  of  a  road  prayed 
for  by  petition,  as  beginning  at  a 
dwelling  house  which  is  known, 
and  ending  at  a  public  road,  is  suf- 
ficiently certain.  Road  from  Mat- 
thew 3Jiller,s  House.  34 

2.  A  road  from  the  plantation  or 
dwelling  house  of  a  petitioner, 
to  or  from  the  public  highway, 
or  any  place  of  public  resort,  as 
described  in  the  17th  section  of 
the  act  of  6th  April,  1802,  is  a 
private  road,  to  be  laid  out,  &c. 
in  the  manner  therein  prescribed, 
and  there  is  no  authoiity  in 
any  Court  of  Quarter  Sessions, 
to  have  it  laid  out  as  a  public  road. 

lb. 

3.  The  77th  section  of  the  act  for 
the  improvement  of  the  state, 
passed  the  2Gth  March,  1821,  em- 
braces those  cases  only  in  which, 
by  the  other  sections,  there  is  no 
special  appropriation  of  the  money 
subscribed  by  the  state  to  future 
expenditures.  Commonwealth  v. 
Hanover  and  Carlisle  Turnpike 
Company.  59 

4.  In  such  appropriations  to  future 
expenditures,  the  state  treasurer  is 
bound  to  pay  the  money  subscribed 
to  the  Company,  and  it  is  no 
objection  to  such  payment  that  a 
contractor  objects  to  it,  who  claims 
for  work  done  before  the  passing 
of  the  act.  lb* 


INDEX. 


477 


RULES  TO  PLEAD,  &c. 
See  Judgment,  1 . 

SATISFACTION. 

See  Election. 

SEAMAN. 

1.  If  a  seaman  ship  at  the  port  of 
Philadelphia,  and  render  him- 
self on  board,  and  afterwards 
desert  at  Chester,  on  the  voyage 
down  the  river,  the  surety  is  lia- 
ble to  the  forfeiture  imposed  by 
the  second  section  of  the  act  of 
congress  of  the  26th  July,  1790. 
Behneke  v.  King.  151 


SET  OFF. 
See  Pleading.     Witness,  5. 

1.  Two  defendants,  sued  jointly, 
may  set  off  a  debt  due  by  the 
plaintiff  to  one  of  them.  Childer- 
ston  v.  Hammon.  68 

2.  So  if  the  debt  be  due  by  one  for 
whom  the  plaintiff  sues  as  trus- 
tee, lb. 

3.  On  evidence  of  set  off  offered  by 
the  defendants,  whether  or  not  the 
debts  on  which  suit  is  brought,  is 
equitably  owned  by  the  defend- 
ant's debtor,  is  a  question  for  the 
jury  to  decide;  and  it  is  error  for 
the  court  to  decide  it,  and  reject 
the  evidence.  lb. 

4.  A  debt  due  from  the  plaintiff  to 
a  co-obligor  with  the  defendant, 
who  was  not  summoned,  is  not  a 
set  off  against  the  plaintiff's  de- 
mand on  the  obligor  who  is  sum- 
moned.      Henderson    v.    Lewis. 

379 


5.  The  separate  debt  due  by  the 
plaintiff  to  one  co-obligor,  cannot 
be  set  off  against  a  demand  against 
both.  lb. 


SCIRE  FACIAS. 


See  Administrator's  Bond,  1. 


SHERIFF. 

See  Evidence,  7,  15.     Inquisition, 
1.    Liberari  Facias. 

1.  The  sheriff  is  liable  for  an 
escape  where  he  has  returned 
non  est  inventus  to  a  capias  ad 
satisfaciendum  which  had  been 
delivered  to  him,  if  piior  to  the 
return  day,  his  deputy  had  the 
defendant  in  custody  under  ano- 
ther capias  ad  satisfaciendum 
and  discharged  him;  though  it  do 
not  appear  that  the  sheriff  knew 
of  the  latter  writ,  or  the  deputy 
of  the  former.  Wheeler  v.  Ham- 
bright.  390 


SHERIFF'S  SALE. 
See  Declaration,  1. 

1.  A  sheriff's  sale  cannot  be  ob- 
jected to  by  the  purchaser,  mere- 
ly on  the  ground  of  defect  of  title; 
it  is  binding  in  all  cases,  except 
where  there  is  fraud  or  a  misde- 
scription of  the  property  in  some 
material  respect.  Friedly  v. 
Scheetz.  156 

2.  A  purchaser  cannot  object  to  a 
sheriff's  sale  a  defect  of  title  of 
which  he  had  notice;  when  he 
has  bought  after  publicly  notify- 
ing at  the  sale  such  defect  of  title, 
he  cannot  give  evidence  thereof 
in  a  suit  against  him  for  the  pur- 
chase money.  lb. 


478 


INDEX. 


3.  If  the  conditions  of  sale  are 
that  the  purchaser  shall  pay  in 
ten  days,  and  the  sheriff's  deed 
shall  be  delivered  at  a  subsequent 
day*  and  that  if  the  purchaser 
refuses  to  comply,  the  property 
will  be  sold  at  his  risk,  and  the 
purchaser  gives  bond  to  comply 
with  the  conditions  of  sale,  he  is 
liable  on  the  bond  without  a  re- 
sale, lb. 

4.  A  sheriff's  sale  may  be  set  aside 
where  the  purchaser  may  be  in- 
jured in  consequence  of  a  misap- 
prehension of  the  terms  of  sale 
occasioned  by  the  act  of  the 
sheriff.      Auwerter    v.    Matkiot. 

397 


STATE  SUBSCRIPTIONS. 
See  Roads,  3,  4. 

STATE  TREASURER. 
See  Roads,  3,  4. 

SURRENDER. 
See  Bail,  3. 

SUMMONS. 

See  Judgment,  1. 

SUMRAL,  JOHN. 

See  Ferry. 

SURVEY. 

1.  A  survey  is  not  evidence  with- 
out showing  an  authority  to 
make  it,  or  proving  that  such  au- 


thority existed  and  was  afterwards 
lost.     Wxhon  v.  Stoner.  38 

2.  Possession  upwards  of  30  years 
under  a  survey  found  in  the  hand- 
writing of  an  assistant  deputy 
surveyor,  indorsed,  "copied  for 
return,"  with  a  memorandum  by 
him  that  there  was  an  authority 
to  make  it,  the  lines  of  which 
survey  are  marked  on  the  ground, 
is  not  a  sufficient  foundation  to 
presume  a  warrant  or  authority. 

lb. 


TAXES. 

1.  Taxes  due  for  seated  lands  are 
not  a  lien  on  real  estate,  but  only 
a  personal  charge  against  the 
owner  or  occupant.  Burd  v. 
Ramsay.  109 


TENANT  FROM  YEAR  TO 
YEAR. 

See  Ejectment. 

TENDER  OF  DEED. 
See  Vendor  and  Vendee,  1,  2. 

TESTATOR. 

1.  The  devisee  of  unpatented  land 
belonging  to  the  testator  has  no 
right  to  call  upon  the  personal 
estate  of  the  testator  to  pay  the 
purchase  money  and  fees  of  pa- 
tenting the  land  on  taking  out  a 
patent.  Case  of  Keyzey  executor 
of  Kerjzey.  71 

TITLE. 

1.  Where  both  plaintiff  and  de- 
fendant derive  title  from  the 
same  person  who  had  been  seised 


INDEX. 


479 


of  the  premises,  it  is  riot  neces- 
sary that  the  plaintiff  should 
show  a  title  out  of  the  common- 
wealth.  Paiton  v.  Goldsborouzh. 

47 


TRESPASS. 

See  Assignment. 

TURNPIKE  ROADS. 
See  Roads,  3,  4. 


VARIANCE. 

1.  Where  the  writ  states  the  plain- 
tiff to  be  executor  of  A.  who 
was  surviving  obligee  with  B. 
it  is  no  variance,  though  the 
statement  descrihe  the  bond  as 
given  to  A.  and  B.  executors  of 
C.  and  the  bond  is  in  that  form. 
Cro/zer  v.  Russel.  78 

2.  After  oyer,  and  pleas  of  per- 
formance and  payment  to  an  ad- 
ministration bond  and  verdict,  it 
is  too  late  to  object  to  a  variance 
between  the  bond  and  the  form 
prescribed  by  the  act  of  assembly, 
nor,  are  unsubstantial  variances 
material  at  any  stage  of  plead- 
ing.   Carlv.  TheCommonweulth. 

63 


VENDOR  AND  VENDEE. 

See  Agent.    Judgment,  5.   Decla- 
ration.    Sheriff's  Sale. 

1.  If  before  the  day  for  accepting  a 
deed  under  a  contract  of  sale, 
the  vendee  deny  that  he  had 
made  the  purchase,  and  makes 
no  other  objection,  that  dis- 
penses with  the  necessity  of  the 
tender  of  the  deed  by  the  vendor 


on  the  day.     Hampton  v.  Spe.ck- 
enagh.  212 

2.  But  though  before  the  day  the 
vendee  deny  that  he  had  made 
the  purchase,  yet  if  the  land  is 
subject  to  incumbrances  not  de- 
clared at  the  time  of  sale,  the 
vendor  must  satisfy  the  jury  be- 
yond a  doubt,  that  he  could  and 
would  have  removed  the  incum- 
brances, or  he  is  not  entitled  to 
damages.  lb. 


VERDICT. 

See  Amendment,  1.     Jeofail,  1,  2, 
3.    Declaration,  1,  3,  4.    Debt,  1. 


WARRANT. 

See  Survey. 

WARRANTY. 

See  Collateral  Warranty. 
Guaranty. 

WIDOW. 

See  Former  Recovery,  1.     Elec- 
tion, 3.     Legacy,  4. 

WRIT  OF  ERROR. 

See  Error. 

WRIT. 

See  Variance. 

WITNESS. 
See  Arrest,  1. 


480 


INDEX. 


1.  Where  a  chose  in  action  is  equi- 
tably assigned,  and  suit  is  after- 
wards brought  by  the  assignee, 
in  the  name  of  the  assignor  for 
his  use,  the  assignor,  if  lie  have 
no  interest  is  a  competent  witness 
for  the  plaintiff.  Fetterman  v. 
Plummer's  Administrator.         20 

2.  The  indorser  of  a  promissory 
note  is  not  a  competent  witness  in 
a  suit  against  the  maker,  to  prove 
that  though  drawn  as  a  note  of 
business  and  so  discounted  by  the 
holder,  it  was  really  in  its  origin, 
a  note  for  the  accommodation 
of  the  indorser,  especially  if  the 
indorser  gave  a  bond  of  indem- 
nity to  the  maker,  when  the  note 
was  given.  Bank  of  Montgo- 
mery v.  Walker.  229 

3.  A  plaintiff  on  the  record  in  an  ac- 
tion of  trespass  de  bonis  asportatis 
may  assign  his  interest  and  become 
a  witness,  but  it  seems,  that  a 
plaintiff  in  slander,  assault  and 
battery,  or  criminal  conversation 
could  not.     North  v.  Turner.  244 


An  assent  to  such  assignment  by 
absent  persons  will  be  presumed 
where  it  is  made  for  a  valuable 
consideration  and  is  beneficial  to 
them.  lb. 

4.  A  plaintiff  on  record  after  as- 
signment of  his  interest  may  be 
a  witness,  on  paying  sufficient  to 
cover  all  the  costs  that  have  ac- 
crued or  may  accrue,  without  an 
express  stipulation  not  to  claim 
any  return.  lb. 

5.  One  of  two  joint  obligors  not 
summoned,  is  not  a  witness  for 
the  other  who  is  summoned,  to 
prove  under  notice  of  set  off,  a 
debt  due  from  the  plaintiff  to  the 
witness,  though  the  witness  is  re- 
leased by  the  defendant.  Hender- 
son v.  Lewis.  379 

6.  A  trustee  of  an  insolvent  debtor 
who  releases  all  his  claims  as 
creditor,  to  the  insolvent,  is  a 
good  witness  on  his  behalf  in  a 
suit  in  the  insolvent's  name  for 
the  use  of  his  creditors.  Stoever 
v.  Stoever.  434 


Correction.      On  the  leaf  following  the  title,  for  Attorney   General,  Frederick 
Smith,  Esq.,  read  Thomas  Elder,  Esq. 


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